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ACC AM Feb 23
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(ACC Mentioned) Rare Earths Extracted From Coal Byproducts
Feb 23, 2016 | Recycling International
United States: Researchers from Pennsylvania State University (PSU) and US department of energy scientists have developed a 'cost-effective' ion-exchange process to extract rare-earth elements from coal byproducts. Ion exchange involves rinsing the coal with a solution such as ammonium sulfate to release the rare earths bound to the coal. -
(ACC Mentioned) It's Found In Laminate Flooring And Apple Juice: Just How Much Formaldehyde Is Safe?
Feb 22, 2016 | Penn Live
By Ivey DeJesus
Laminate flooring once again has come under scrutiny after the nation's leading health regulating agency flagged it for major health concerns on Monday. The Centers for Disease Control and Prevention singled out Lumber Liquidators after it found that the retailer's laminate wood flooring products from China carried a greater risk of causing cancer... -
TSCA Talks Slow Down Amid Growing Distractions
Feb 22, 2016 | PoliticoPro
By Darren Goode
Lawmakers are racing the clock to finish a widely supported chemical safety bill that is at risk of getting crowded off the congressional calendar. While negotiators are confident they can work out the differences between House- and Senate-passed updates to the 1976 Toxic Substances Control Act, distractions are multiplying... -
Consumers Want Simple Labels, Not Codes
Feb 22, 2016 | Environmental Working Group
By Mary Ellen Kustin
Busy consumers want ingredients disclosed on food labels – not embedded in electronic codes that must be scanned with a smart phone. New polling by the Mellman Group shows that Americans are skeptical of the food industry’s proposed alternative to mandatory GMO labeling – requiring them to scan a Quick Response, or “QR,” label... -
NGO Warns TTIP Could Undermine Chemicals Safety Policy
Feb 23, 2016 | Chemical Watch
By Leigh Stringer
A UK-based NGO says proposals to align regulations in a EU-US Transatlantic Trade and Investment Partnership (TTIP) deal could delay or undermine chemicals safety. The twelfth round of negotiations on the TTIP kick off in Brussels this week. The European Commission says regulatory cooperation will be at the “forefront” of the talks. -
OECD Cites Possible Risks from Nanomaterials in Waste Flows
Feb 23, 2016 | BNA Daily Environment Report
By Rick Mitchell
Research is urgently needed to take stock of possible risks to human health and ecosystems from increasing amounts of man-made nanomaterials in household waste flows, according to a Feb. 22 report from the Organization for Economic Cooperation and Development. -
OECD Reports On The Categorisation Of Manufactured Nanomaterials
Feb 23, 2016 | Chemical Watch
By Philip Lightowlers
The OECD has released a report on an expert workshop held by its Working Party on Manufactured Nanomaterials (WPMN) on 17-19 September 2014. It is part of a series of reports on the physico-chemical properties of nanomaterials. -
(ACC Mentioned) Petitioners Highlight Objections to Industrial Boiler Rule
Feb 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Four environmental organizations intend to ask a federal appeals court to consider whether the Environmental Protection Agency acted illegally when it established carbon monoxide emissions limits and provisions for startup and shutdown in the agency's standards for industrial boilers (Sierra Club v. EPA, D.C. Cir., No. 16-1021, statement... -
Maryland Court Approves LNG Generating Station
Feb 23, 2016 | BNA Daily Environment Report
By Kathy Lundy Springuel
The Maryland Court of Special Appeals has affirmed the state Public Service Commission's 2014 order that gave Dominion Cove Point LNG permission to build an electricity generating station at its natural gas export terminal on the shores of the Chesapeake Bay. The generating station is intended ... -
House Energy Committee to Mark Up Bills
Feb 23, 2016 | BNA Daily Environment Report
By Ari Natter
Legislation that would amend the Natural Gas Act to allow the use of aerial survey data for pipeline permitting is among energy bills scheduled to be marked up by the House Energy and Commerce Committee on Feb. 25, a committee aide told Bloomberg BNA Feb. 22. -
Clean Power Plan Opponents Lean on Scalia in Briefs
Feb 23, 2016 | BNA Daily Environment Report
By Andrew Childers
Justice Antonin Scalia died before the U.S. Supreme Court had a chance to hear legal arguments against the Environmental Protection Agency's Clean Power Plan, but the rule's opponents leaned heavily on the late jurist's words when crafting arguments against the rule. -
Group Tells Court EPA Took 'Marching Orders' From Lobbyists
Feb 22, 2016 | E&E News PM
By Ellen M. Gilmer
As a throng of challengers file legal briefs criticizing the Obama administration's Clean Power Plan as overreaching and unconstitutional, one group is stepping forward with a simpler, but serious, allegation: U.S. EPA let lobbyists write the rule. The Energy & Environment Legal Institute told the ... -
E&C Panel To Vote On Bills To Ease Brick Regs, Aid Minority Workers
Feb 23, 2016 | E&E Daily News
By Sean Reilly
The House Energy and Commerce Committee is set to wade through a 17-bill markup tomorrow and Thursday that includes measures to ease air pollution regulations on brick makers and a small piece of the electric power industry. Bills on the agenda include one from Rep. Mike Pompeo (R-Kan.) that would allow use of aerial surveys for Federal... -
U.S. Greenhouse Gas Emissions Rise 0.9 Percent
Feb 23, 2016 | BNA Daily Environment Report
By Anthony Adragna
Domestic greenhouse gas emissions rose 0.9 percent from 2013 to 2014, spurred upward by increased industrial production and a relatively cold winter, the Environmental Protection Agency said in a draft report released Feb. 22. Greenhouse gas emissions totaled the equivalent of 6,872.6 million... -
EPA: US Greenhouse Gas Emissions Increased Slightly In 2014
Feb 22, 2016 | The Hill - E2 Wire
By Devin Henry
American greenhouse gas emissions increased by less than 1 percent in 2014, according to new Environmental Protection Agency (EPA) data released this week. In the draft version of the EPA’s annual greenhouse gas report, the agency said emissions in the U.S. increased by 0.9 percent between 2013 and 2014 after a 2.2 percent increase... -
Green Groups Ready Lobbying Machine For Confirmation Fight
Feb 23, 2016 | E&E Daily News
By Kevin Bogardus
Sensing a chance to fundamentally reshape the nation's highest court, environmental groups have begun to prime their advocacy game in support of President Obama's looming Supreme Court nominee. Activists say the high court may end up deciding the president's energy and environment legacy. Justices earlier this... -
Waxman Successor Follows In His Footsteps On Climate Advocacy
Feb 23, 2016 | E&E Daily News
By Amanda Reilly
Rep. Ted Lieu (D-Calif.) knows he has big shoes to fill. Early last year, Lieu, 46, took the Los Angeles-based seat of now-retired Rep. Henry Waxman (D), who served in Congress for four decades and was long considered one of the House's top climate change champions. "If I could do half as much as he did, it would be an astounding success,"... -
Critics To Hammer EPA Over Ozone Standard
Feb 22, 2016 | E&E News PM
By Sean Reilly
Critics of U.S. EPA's actions against ozone pollution are planning to use an upcoming event to once again hammer the agency with concerns about compliance with a recently tightened standard. EPA is touting a workshop this week on background ozone -- scheduled for Wednesday and Thursday in Phoenix -- as an opportunity "to advance the... -
6th Circuit's Decision To Hear CWA Rule Suit Spurs Fresh Legal Confusion
Feb 22, 2016 | InsideEPA
By Bridget DiCosmo
The U.S. Court of Appeals for the 6th Circuit's divided decision to hear consolidated suits over EPA's Clean Water Act (CWA) jurisdiction rule creates fresh legal confusion, as it fails to resolve whether the myriad federal district court cases over the rule will continue and the majority's reasoning could be vulnerable to a rehearing request. -
Sixth Circuit Claims Jurisdiction To Hear Merits Of Challenge To EPA ‘Waters Of The United States’ (WOTUS) Rule
Feb 22, 2016 | The Washington Post
By Jonathan H. Adler
Today a splintered three-judge panel of the U.S. Court of Appeals for the 6th Circuit concluded that it has jurisdiction to review challenges to the controversial “waters of the United States” (WOTUS) rule. This regulation, issued by the Environmental Protection Agency and the Army Corps of Engineers, seeks to clarify and expand...
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(ACC Mentioned) Rare Earths Extracted From Coal Byproducts
Feb 23, 2016 | Recycling International
United States: Researchers from Pennsylvania State University (PSU) and US department of energy scientists have developed a 'cost-effective' ion-exchange process to extract rare-earth elements from coal byproducts. Ion exchange involves rinsing the coal with a solution such as ammonium sulfate to release the rare earths bound to the coal.
The 17 rare-earth elements support more than US$ 329 billion of economic output in North America, according to the American Chemistry Council, and the United States Geological Survey expects worldwide demand to grow more than 5% annually through 2020. Rare-earth elements are used in, among many other everyday items, computers, smart phones, rechargeable batteries, electric vehicles, magnets and chemical catalysts. Currently, China produces more than 85% of the world’s rare-earth elements, with the USA in second place at just over 6%.
'We have known for many decades that rare-earth elements are found in coal seams and near other mineral veins,' says Professor Sarma Pisupati of PSU's energy and mineral engineering department. 'However, it was costly to extract the materials, and there was relatively low demand until recently. We wanted to take a fresh look at the feasibility of extracting REEs from coal because it is so abundant in the United States. Essentially, REEs stick to the surface of molecules found in coal, and we use a special solution to pluck them out. We experimented with many solvents to find one that is both inexpensive and environmentally friendly.'
The researchers used coal byproducts in their study, some of which were discarded or marked as refuse during mining operations owing to poor quality.
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(ACC Mentioned) It's Found In Laminate Flooring And Apple Juice: Just How Much Formaldehyde Is Safe?
Feb 22, 2016 | Penn Live
By Ivey DeJesus
Laminate flooring once again has come under scrutiny after the nation's leading health regulating agency flagged it for major health concerns on Monday.
The Centers for Disease Control and Prevention singled out Lumber Liquidators after it found that the retailer's laminate wood flooring products from China carried a greater risk of causing cancer and other health problems than previously thought.
The cause of alarm is centered around formaldehyde, a known-carcinogenic found in the floor products. The warning reinvigorates the debate surrounding the use of this organic compound in consumer goods and housing.
Formaldehyde, which is found in an array of consumer goods, from cosmetics, to toothpaste to wrinkle-free clothing, has for years been a point of contention between the chemical industry and its lobbying arm and health advocates.
Health and safety advocates hail the CDC's warning as a step in the right direction in the fight to get unsafe consumer products off the market. Chemical scientists, meanwhile, caution that the warning amounts to unnecessary alarm sounding based on hyped science.
Jonathan Wilson belongs to the former group. "We got more formaldehyde than anyone will get in their entire life from taking biology class." - Josh Bloom
Director of research at the National Center for Safety Housing in Washington, D.C., Wilson bemoans that the U.S. has what he calls "a reactive chemical policy."
Wilson said federal regulators should have in place a system that proactively tests the products that the chemical industry has been selling to manufacturers of consumer goods and the housing market - rather than sounding the alarm in the wake of troubling findings.
"We don't really understand what is going in," Wilson said. "There is a fine line between scaring the public and helping to make it better informed. We should have a better policy. Should people be afraid of where they are living? No, but they should be asking better questions."
Formaldehyde, a volatile organic compound that gives off gases, has drawn increasing scrutiny over the last 20 years with the rising use of laminated wood products, which have increasingly replaced the more expensive hardwoods in the housing industry. Fabricated wood products such as laminates and other pressed wood products contain glues and resins that contain formaldehyde.
Health advocates clamored for stiffer regulations after hundreds of victims of Hurricane Katrina in 2005 became sick after they were housed in hastily built temporary trailers that proved to contain elevated levels of formaldehyde. This March 2008 file photo shows a Federal Emergency Management Agency employee walking past some of the 11,800 mobile homes and 7,500 travel trailers stored at the Hope Municipal Airport near Hope, Ark. Most were never used after similar models used to house victims of hurricanes Katrina and Rita in 2005 tested positive for high levels of formaldehyde.
The quest to regulate formaldehyde in consumer goods has largely been stalled in a political tug-of-war between health advocates and the chemical industry and its powerful lobbying interest in Washington.
In the meantime, on the homefront, energy efficient homes - with their well-sealed, climate controlled and limited ventilation systems - have exacerbated matters. Put simply: The off-gas products linger in the air longer because of poor ventilation.
"If you get a lower-cost shower curtain and open up the package, you get that whiff, that is VOC (volatile organic compound) that you are smelling," Wilson explained. "You hang it up in the bathroom and first month that it's there you smell it a lot but with time, it's not that your senses go bad, it's putting off less and less. The same happens with formaldehyde."
Better ventilation, he adds, will dry out the wood product faster, but it still takes a considerable amount of time for the gas reading to hit zero.
Lumber Liquidators has 20 stores in Pennsylvania, including New Cumberland, York, Lancaster and Chambersburg.
Efforts by the U.S. Environmental Protection Agency to establish tougher regulations for formaldehyde have stalled for years in the face of stiff opposition from such groups as the American Chemistry Council, which last year opined: "The scientific literature is clear that there is no increased health risk from low-level exposures normally found in home or work environments."
Josh Bloom, director of chemical and pharmaceutical scientists at the American Council on Science and Health, says federal health regulators are getting carried away with hyped findings.
"It's much to do about nothing," said Bloom, who describes his organization as a "science and medical myth buster" not beholden to the chemical industry.
"We take the stuff that is plain old wrong and we explain to people why it is, especially if pertain public policy," he said.
Blooms attributes the hype over formaldehyde and laminate flooring on what he calls the misguided conversation in America regarding chemicals used in consumer products. Bloom says "unsavory environmental groups" at some point switched their focus from pollutants in rivers to trace chemicals in our food and products (one of the reasons, he said, the organic movement exploded).
An organic chemist, Bloom says he has yet to see experiments or epidemiological studies linking trace formaldehyde to cancer or other diseases.
"We went to biology class in high school," he said. "The place reeks of it. That's from the formaldehyde....We got more formaldehyde than anyone will get in their entire life from taking biology class."
The CDC on Monday said that the laminate floor product from Lumber Liquidators can create respiratory issues for people with asthma or related illnesses, and can cause irritation for the eye, nose and throat for anyone else.
The agency cited that the retailer's wood product carried an estimated risk of cancer of 6-30 cases per 100,000 people, not 2-9 cases per 100,000 people as previously reported.
Bloom said researchers typically set extremely conservative - and arbitrary - limits.
"They set limits way below any level you would see any effects in lab animals," Bloom said.
Bloom explained that the human body, specifically the liver, is "exquisitely designed" to process chemicals, even if they are found in hamburgers.
"Formaldehyde is a perfect example," Bloom said. "It lasts five minutes in the blood then it gets excreted pretty soon. It's not like you are working with wood laminates and there are vapors pouring out. You may be taking in tiny amounts of formaldehyde but the body is processing it."
Formaldehyde, incidentally, occurs naturally in some foods, such as apple sauce and apple juice.
Bloom applauds that the U.S. has gotten lead out of gasoline and that the effort to get dangerous chemicals out of waterways and the air continues. But, he said, the shift refocusing the national discourse around "tiny amounts of chemicals that have been there all along" has provided fodder for anyone seeking to put a scare.
"A lot of people's jobs depend on finding things wrong with a chemical - in government or academia certainly in the consumer world," Bloom said. "Fear sells. It's a political world. It's very effective."
He said EPA regulations on formaldehyde are probably unnecessary.
"There is no analytical instrument that is better than the human nose," Bloom said. "If you can't smell it, the chances are there's not much of it there. Of course that's oversimplified. If I smelled formaldehyde coming out of the floor, I wouldn't be happy about it, but that doesn't mean it's going to hurt me."
Wilson disagrees.
He said Americans should want to make sure their homes and products do not contain these types of chemicals. Stiffer regulations, he said, are necessary.
Already, Wilson points out, a growing number of manufacturers - including Ikea - have phased out the use of formaldehyde in their furniture. Other manufacturers have responded to calls for lowered amounts. Much of the drive has been fueled by California, whose more rigorous regulations provided the original impetus for stricter formaldehyde standards.
"We should be concerned that there are things that go into vinyl flooring that make it softer and easier to use and we should be concerned about how they may affect the body," Wilson said.
In recent years, Wilson points out, paint manufacturers have removed volatile organic components from paint, which is why products on the market have no longer give off strong chemical vapors.
"All these things are progress and they should be applauded," Wilson said. "And we should be reminded that when we are smelling something in the home, we should be asking what is it and should we do better?"
The CDC is recommending that people take steps to reduce exposure to formaldehyde, such as opening windows. The agency is expected to issue a final report on the issue.
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TSCA Talks Slow Down Amid Growing Distractions
Feb 22, 2016 | PoliticoPro
By Darren Goode
Lawmakers are racing the clock to finish a widely supported chemical safety bill that is at risk of getting crowded off the congressional calendar.
While negotiators are confident they can work out the differences between House- and Senate-passed updates to the 1976 Toxic Substances Control Act, distractions are multiplying in a year when legislating already promised to be cut short by the presidential election.
Key players in the chemical talks have been pulled away by more immediate public health crises, such as the spread of the Zika virus and the lead-contaminated drinking water in Flint, Michigan, which already stalled a bipartisan energy bill. And that was before Antonin Scalia's death sparked a Supreme Court nomination fight that seems likely to overshadow everything else on the Senate's agenda.
Meanwhile, Rep. John Shimkus (R-Ill.), the lead sponsor of the House TSCA overhaul, is facing a long-shot primary challenger backed by the conservative Club for Growth, which tends to take a hard line against bipartisan compromises like those that went into his bill, although aides involved in the talks say that is not a factor.
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), who led the TSCA reform push in the Senate, had said they hoped to have the differences worked out between their bill and Shimkus' version by the end of March, although even that may not be enough time to get a bill to President Barack Obama's desk before his Supreme Court pick threatens to upend Senate comity.
Lawmakers and aides in both chambers say it shouldn't be too much of a lift to marry the two bills.
“The pace of progress has been slower than anticipated but it’s nothing that can’t be worked through,” said Jennifer Talhelm, a Udall spokeswoman. “This law hasn’t been updated in 40 years and the subject matter is complex and there are always other demands on members’ time.”
Sen. Barbara Boxer, the Environment and Public Works Committee ranking member, said Monday that "there are tons of meetings going on" at the staff level. She said she is optimistic the bill will make it across the finish line because negotiators were making good progress to assemble a "noncontroversial" bill.
A "mix of variables” have slowed the pace of the discussions, said one industry official. “What it is not is hard to reconcile the differences.”
At least one factor changed Monday, when a top House Democratic negotiator returned from maternity leave.
But others may not clear up as succinctly.
House Energy and Commerce aides have had two massive short-term crises fired at them in recent weeks regarding the federal response to both the Flint water contamination and the spread of the Zika virus.
Senate Environment and Public Works Chairman Jim Inhofe has been one of the lead negotiators trying to reach a Flint deal, talks that may end up getting extended throughout upcoming debate on much broader water infrastructure legislation. Democrats filibustered the bipartisan energy bill this month after Republicans balked at a Flint aid proposal they had worked out with Inhofe.
Shimkus' upcoming primary may be adding to the distraction too. His March 15 race has drawn more outside spending than all but two other House districts, thanks mostly to the $227,575 spent so far by the Club for Growth, which has labeled Shimkus as “one of the most liberal Republicans in Congress.” Campaign spokesman Steve Tomaszewski emphasized that the Illinois Republican hasn’t put the TSCA talks on hold, and aides in both chambers say his primary has not slowed the talks.
State Sen. Kyle McCarter had just $87,000 in his own campaign account at the end of last year, compared to more than $1.3 million for Shimkus. Little public polling exists for the district, but a January survey found Shimkus ahead 65-13.
When the House voted 398-1 for Shimkus's TSCA bill last summer, it was a well-timed showcase for his dealmaking ability that boosted his chance to succeed term-limited Energy and Commerce Chairman Fred Upton atop the powerful panel next Congress. His profile has helped attract donations from corporate powerhouses like Dow Chemical, Exelon and Southern Company and endorsements from key groups like the Chamber of Commerce.
But that track record may be less of an asset in an election cycle dominated by outsiders. And with the memory of Dave Brat’s improbable 2014 primary win over then-House Majority Leader Eric Cantor still resonating, Shimkus is taking McCarter’s challenge seriously and has been running cable TV campaign ads in the district for the first time since 2002.
"Shimkus should be fine," the Illinois Republican official said. "But at the same time, in this environment you can’t take anything for granted."
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Consumers Want Simple Labels, Not Codes
Feb 22, 2016 | Environmental Working Group
By Mary Ellen Kustin
Busy consumers want ingredients disclosed on food labels – not embedded in electronic codes that must be scanned with a smart phone.
New polling by the Mellman Group shows that Americans are skeptical of the food industry’s proposed alternative to mandatory GMO labeling – requiring them to scan a Quick Response, or “QR,” label – because the number of shoppers who scan QR codes to get information about products is low – and not growing. The Mellman poll shows that few Americans have ever scanned a code and that nine of 10 people want a genetically engineered, or “GMO,” label on the package – not a high tech gimmick.
In general, most consumers simply don’t use smart phones at the point of sale. So far, that’s just not how Americans shop for food.
Another reason codes are no substitute for simple labels is that many people still don’t have smart phones. As Andy Kimbrell of the Center for Food Safety has noted, roughly 40 percent of Americans – especially low income, less educated and elderly people – don’t have phones that can scan QR codes. One solution – installing scanners in every supermarket aisle or sending shoppers to information desks – would be costly for retailers and inconvenient for individuals.
Even if food companies put QR codes on the package, there would be no prompt – such as, “scan here for GMO” – on the box, so shoppers wouldn’t know that scanning the code would give them more information about their food. What’s more, GMO information would be hidden under “other” information. Most important, the disclosure wouldn’t definitively tell people what they want to know – whether the food has GMO ingredients.
It gets worse. Scanners won’t work if the codes are too small or supermarkets are poorly lit. Codes on bags – for instance, bags of potato chips – are very difficult to scan because they are not on a flat surface.
There are no privacy protections. When a person scans a code, the manufacturer can collect data on the shopper’s location and preferences – without knowledge or permission.
The biggest problem with Grocery Manufacturers Association proposal is that it’s completely voluntary. Food companies can include a code on their packages – or not. They can drop out of the program at any time.
Without clear rules, the food industry’s SmartLabel would make it harder, not easier, for Americans to learn basic facts about their food. It’s time for big food companies like Coca-Cola and General Mills to trust us to make our own decisions about what we feed our families.
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NGO Warns TTIP Could Undermine Chemicals Safety Policy
Feb 23, 2016 | Chemical Watch
By Leigh Stringer
A UK-based NGO says proposals to align regulations in a EU-US Transatlantic Trade and Investment Partnership (TTIP) deal could delay or undermine chemicals safety.
The twelfth round of negotiations on the TTIP kick off in Brussels this week. The European Commission says regulatory cooperation will be at the “forefront” of the talks.
But NGO CHEM Trust is concerned that such cooperation could: slow down the implementation of existing laws;decrease the level of protection by aligning EU and US regulations; andprevent or delay measures needed to protect human health and environment.
The Commission set out its proposal for regulatory cooperation during the eighth round of negotiations in February last year.
The NGO's senior policy advisor Ninja Reineke, says there is “no sign” that regulatory cooperation under TTIP would improve the protection of public health and the environment from hazardous chemicals.
“At the moment everything points to a weakening of regulation, not the strengthening that is needed both in the EU and US,” she says.
Last month, European Consumer Organisation, Beuc, raised the same concerns, saying that the agreement could delay, or undermine, progress in reducing consumer exposure to toxic chemicals.
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OECD Cites Possible Risks from Nanomaterials in Waste Flows
Feb 23, 2016 | BNA Daily Environment Report
By Rick Mitchell
Research is urgently needed to take stock of possible risks to human health and ecosystems from increasing amounts of man-made nanomaterials in household waste flows, according to a Feb. 22 report from the Organization for Economic Cooperation and Development.
The 98-page report, written by experts from Switzerland, Germany, Canada and France, notes that because of “significantly enhanced” chemical and physical properties linked to their nanoscale structure, nanomaterials are widely used in products such as sunscreen, cosmetics, antibacterial textiles and lithium ion batteries.
But nanomaterials' special properties also make them possible sources of environmental and safety risks, the OECD said.
For example, research suggests that their size—as tiny as a millionth of a millimeter—enables them to more easily penetrate skin and cells than larger compounds. That suggests they could have carcinogenic properties in lungs, toxic effects to the nervous system and antibacterial properties that could damage ecosystems.
Despite this, waste that contains engineered nanomaterials is disposed of along with conventional waste, with no special precautions or treatment, according to the organization.
Simon Upton, director of OECD's Environment Directorate, wrote that “a relative blank spot in scientific understanding lies in the area of waste management.”
In a statement, OECD said: “Engineered nanomaterials are valued for the novel properties caused by their near-atomic size. The number of products containing them leapt fivefold from 2006 to 2011 as manufacturers used them to improve performance in more than 1,300 products from car [tires] and tennis rackets to smartphone batteries, deodorant and hair conditioner.”
Treatment Facilities Inadequate
In September 2013—based on almost seven years of work by the OECD Working Party on Manufactured Nanomaterials—the organization issued a council recommendation that said many existing OECD test guidelines and regulatory frameworks are generally suitable for nanomaterials, with some possible adjustments to take into account specificities of nanomaterials (15 DEN A-2, 1/25/16).
But that recommendation “does not imply that current waste management processes and techniques are generally appropriate in addressing potential impacts of nanomaterials,” the new report said.
Manufactured nanomaterials are getting into landfill sites, incinerators and wastewater treatment facilities not typically designed to filter out nano-size particles, it said. As nanoparticles end up in sewer sludge used as agricultural fertilizer and in sewage plant effluent that flows into rivers and lakes, as well as in recycled goods, they could expose people to these substances.
Of most concern is the existence of nanomaterials in the dried and composted wastewater sludge that is often spread on farmlands as fertilizer. In France, for example, half the national wastewater sludge is used for agricultural fertilization, OECD said.
Recommended Research
The publication aims to identify knowledge gaps where priority research is needed. For example, it said potential transformation of engineered nanomaterials in soil, their interactions with plants and bacteria, and their transfer to surface water has not been studied in depth.
The Paris-based organization called for research into the type and amount of nanomaterials entering waste streams, what happens to them inside treatment facilities and the potential impacts of residual waste containing nanomaterials. Studies also should look at areas where current scientific findings are contradictory and where there just isn't enough data, such as for recycling facilities and landfills, it said.
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OECD Reports On The Categorisation Of Manufactured Nanomaterials
Feb 23, 2016 | Chemical Watch
By Philip Lightowlers
The OECD has released a report on an expert workshop held by its Working Party on Manufactured Nanomaterials (WPMN) on 17-19 September 2014.
It is part of a series of reports on the physico-chemical properties of nanomaterials.
The goal of the meeting was to develop a categorisation approach for manufactured nanomaterials in order to improve testing and better target risk management.
It is published under the responsibility of the OECD's Joint Meeting of the Chemicals Committee and Working Party on chemicals, pesticides and biotechnology.
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(ACC Mentioned) Petitioners Highlight Objections to Industrial Boiler Rule
Feb 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Four environmental organizations intend to ask a federal appeals court to consider whether the Environmental Protection Agency acted illegally when it established carbon monoxide emissions limits and provisions for startup and shutdown in the agency's standards for industrial boilers (Sierra Club v. EPA, D.C. Cir., No. 16-1021, statement filed 2/18/16).
The Sierra Club, Clean Air Council, Environmental Integrity Project and Chesapeake Climate Action Network are challenging a November 2015 reconsideration rule that altered aspects of the maximum achievable control technology standards for major source boilers, which are commonly found at chemical plants, petroleum refineries and other industrial facilities. The final rule (RIN 2060-AS09) included alternative work practice standards for boiler startup that were welcomed by industry in advance of a Jan. 31 deadline for compliance with the boiler standards.
The environmental organizations, in a Feb. 18 statement of issues, highlighted seven legal questions they intend to raise before the U.S. Court of Appeals for the District of Columbia Circuit, including challenges to the startup and shutdown provisions.
The petitioners said they intend to ask the court to consider whether the EPA unlawfully or arbitrarily weakened emissions standards by allowing boiler operators to exclude the pollution emitted during startup and shutdown from consideration in determining facility compliance. The environmental groups also said they intend to question whether the EPA violated the Clean Air Act when the agency set work practice standards in lieu of numeric emissions standards during boiler startup and shutdown.
James Pew, an Earthjustice attorney representing the environmental petitioners, told Bloomberg BNA when the lawsuit was filed in January that his clients are concerned that the startup and shutdown provisions in the EPA's reconsideration rule established a “loophole” for boiler operators (12 DEN A-1, 1/20/16).
Several industry organizations, including the American Chemistry Council, the American Forest & Paper Association and the Utility Air Regulatory Group, have asked the D.C. Circuit to grant them intervenor status in the litigation. The boiler MACT standards (RIN 2060-AQ25; RIN 2060-AR13) cover more than 14,000 boilers and are estimated by the EPA to cost industry about $1.6 billion annually.
Carbon Monoxide Floor Questioned
The environmental groups also said they intend to challenge the EPA's decision to establish a minimum level for carbon monoxide emissions from boilers, which the agency regulated as a surrogate for controlling all organic hazardous air pollutants, except for dioxins, that are emitted by boilers.
The EPA in 2013 established a floor for the carbon monoxide standards of 130 parts per million after concluding that there is no apparent relationship between carbon monoxide and organic hazardous air pollutants at lower levels. The environmental groups, in a 2013 petition for reconisderation, said the EPA's new carbon monoxide floor weakened 15 different emissions limitations, which had previously been set at levels below 130 ppm. In the 2015 reconsideration rule, the agency rejected a request by environmental groups to raise that floor.
The environmental petitioners said they intend to ask the court whether:
• the EPA violated the Clean Air Act by setting carbon monoxide standards that are less stringent than required by the Clean Air Act;
• the agency acted illegally by establishing weaker carbon monoxide standards for new boilers without demonstrating that the standards reflect the level of pollution control achieved by the best-performing units; and
• the agency contravened the Clean Air Act by weakening the carbon monoxide standards for existing boilers without demonstrating that the standards reflect the average emissions limitation achieved by the best-performing units in the source category.
The environmental petitioners, in separate litigation over the boiler MACT standards, have challenged the legitimacy of regulating carbon monoxide emissions as a surrogate for organic hazardous air pollutants. The D.C. Circuit heard arguments in that litigation in December, but a decision is still pending (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, argued 12/4/15; 233 DEN A-5, 12/4/15).
Also on Feb. 18, the environmental petitioners and the EPA filed a motion to govern future proceedings that would require proposed briefing scheduled to be submitted to the court by March 18.
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Maryland Court Approves LNG Generating Station
Feb 23, 2016 | BNA Daily Environment Report
By Kathy Lundy Springuel
The Maryland Court of Special Appeals has affirmed the state Public Service Commission's 2014 order that gave Dominion Cove Point LNG permission to build an electricity generating station at its natural gas export terminal on the shores of the Chesapeake Bay.
The generating station is intended to power refrigerant compressors that will liquefy domestic natural gas so it may be stored in canisters for export abroad.
On May 30, 2014, the PSC granted Dominion's request for a certificate of public convenience and necessity to construct the 130-megawatt station, subject to certain conditions (Order No. 86372). Those conditions included obtaining the necessary federal approvals and paying $40 million into Maryland's Strategic Energy Investment Fund over five years plus $8 million toward low-income energy assistance over 20 years (106 DEN A-16, 6/3/14).
Dominion subsequently accepted the PSC's conditions.
Second Affirmation in State Courts
An environmental organization, the Accokeek, Mattawoman, Piscataway Creeks Communities Council, first challenged the PSC's ruling in Maryland Circuit Court for Baltimore City.
That court ruled in favor of the commission on Dec. 22, 2014, followed by a memorandum order the next month (in re Petition of Accokeek, Mattawoman, Piscataway Creeks Communities Council, Inc., Md. Cir. Ct., No. 24-C-14-003896, 1/23/15).
AMP Creeks, as the group is known, then sought judicial review by the Maryland Court of Special Appeals, which also affirmed the PSC's decision (Accokeek, Mattawoman, Piscataway Creeks Communities Council, Inc. v. Md. Pub. Serv. Comm'n., Md. Ct. Spec. App., No. 2437, 2/16/16)
The court's 47-page order discussed the challenges raised on appeal but held that the group failed to demonstrate that the PSC's action was unconstitutional, unsupported by substantial evidence, outside of its authority, or arbitrary or capricious.
The petitioners had raised concerns about how the generating station's economic effects were analyzed, whether the $48 million in payments constituted the levying of taxes by the PSC and whether it was appropriate for county commissioners to express support for the LNG export terminal in general instead of focusing solely on the electricity generating station at issue in the proceeding.
Final Appeal Expected
Sean P. Canavan, attorney for AMP Creeks, told Bloomberg BNA in a Feb. 22 e-mail that the group intends to appeal the matter to the Maryland Court of Appeals, the state's highest court.
While the outcome was “obviously not ideal,” the Court of Special Appeals “accepted a large number of our arguments and we believe the Court of Appeals is likely to accept that the PSC acted illegally,” Canavan said.
He said that the PSC's 2014 order “recognized the generating station would harm Maryland financially and environmentally. We think the Court of Appeals will recognize that in nevertheless granting” its approval, “the PSC acted illegally.”
Dominion previously received permission from the U.S. Department of Energy and the Federal Energy Regulatory Commission to move forward with LNG exports from its terminal in Calvert County, Md., although FERC's approval remains subject to a court challenge (05 DEN A-16, 1/8/16).
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House Energy Committee to Mark Up Bills
Feb 23, 2016 | BNA Daily Environment Report
By Ari Natter
Legislation that would amend the Natural Gas Act to allow the use of aerial survey data for pipeline permitting is among energy bills scheduled to be marked up by the House Energy and Commerce Committee on Feb. 25, a committee aide told Bloomberg BNA Feb. 22.
In addition to the AIR Survey Act of 2015 (H.R. 3021), the bills scheduled for markup include H.R. 3797, which would exempt power plants that use “coal waste” from certain emission regulations.
Specifically, the legislation by Rep. Keith Rothfus (R-Pa.) would modify the Cross-State Air Pollution Rule and Mercury and Air Toxics Standards for Power Plants as they apply to coal refuse-to-energy facilities.
The committee also is scheduled to mark up the BRICK Act, which would allow for judicial review of any final rule addressing national emissions standards for hazardous air pollutants for brick and structural clay products or for clay ceramics manufacturing before requiring compliance with the rule.
The committee also is scheduled to vote on H.R. 2984, the Fair RATES Act, which would amend the Federal Power Act to allow rehearings of FERC decisions affecting rates when the normally five-member commission has only four members and is deadlocked 2-2.
Currently, when the commission reaches a 2-2 vote on a rate-setting matter, the process goes forward even though no order is issued, and there's no way to contest the decision via a rehearing process.
Also scheduled for markup are six bills that would extend the construction timelines for hydroelectric power plants overseen by the Federal Energy Regulatory Commission.
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Clean Power Plan Opponents Lean on Scalia in Briefs
Feb 23, 2016 | BNA Daily Environment Report
By Andrew Childers
Justice Antonin Scalia died before the U.S. Supreme Court had a chance to hear legal arguments against the Environmental Protection Agency's Clean Power Plan, but the rule's opponents leaned heavily on the late jurist's words when crafting arguments against the rule.
States and industry groups leading the legal fight against the Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the power sector in each state, repeatedly cited Scalia's prior warning to the EPA about seeking new regulatory powers from existing statutes without explicit authorization from Congress in briefs filed Feb. 19 in the U.S. Court of Appeals for the District of Columbia Circuit.
The EPA's rule subverts the clear statutory language of the Clean Air Act by regulating how utilities generate electricity rather than setting limits on their emissions and by setting standards for existing units that are more stringent than those for new power plants, upending decades of Clean Air Act regulation, states, utilities and industries opposed to the rule argued in the briefs (West Virginia v. EPA, D.C. Cir., No. 15-1363, briefs filed 2/19/16).
In a brief detailing core legal challenges to the Clean Power Plan, opponents keyed in on the way the EPA pushed utilities to reduce emissions through investments in new renewable generation or shifting load from coal-fired units to less polluting natural gas plants as examples of the agency stretching its authority under Section 111(d) of the Clean Air Act to pursue—in the administration's own words—a “more aggressive transformation in the domestic energy industry.”
Rule ‘Significant and Transformative.'
“The rule's attempt to reorder the power grid is precisely the sort of significant and transformative assertion of authority that, under the Supreme Court's decisions, requires ‘clear congressional authorization,' ” opponents of the rule said, quoting from Scalia's opinion in a 2014 decision that limited the scope of the EPA's greenhouse gas permitting requirements (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2014 BL 172973, 78 ERC 1585 (2014)).
The Clean Power Plan's emphasis on generation shifting and new renewable generation oversteps authorities reserved for states under the Federal Power Act, opponents argued.
“Nevertheless, EPA seeks to usurp these important traditional state police powers,” opponents of the rule said. “Until now, the states have determined for themselves the extent to which they should (or should not) mandate particular levels of renewable generation, balancing such generation's benefits against other considerations, including the risks that energy dependent on weather events (such as wind speed, cloudiness, and snow cover) often pose to the grid's reliability.”
The Clean Power Plan is being challenged by 27 states, as well as by several utility and industry groups. The Supreme Court stepped in Feb. 9 to stay implementation of the rule even before the D.C. Circuit heard oral arguments, which are scheduled for June 2 (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).
Clean Power Plan Challenges
• Rather than setting performance standards for individually regulated power plants, the Clean Power Plan regulates how utilities can generate electricity, effectively mandating that coal-fired utilities will operate less, opponents say.
• The emphasis on shifting generation from coal-fired power plants to new renewable energy or gas-fired units oversteps state authority under the Federal Power Act.
• The EPA has offered different interpretations of “best system of emissions reduction” in rules for new power plants and the Clean Power Plan standards for existing units.
• The EPA has not demonstrated that its “best system of emission reduction” is readily available and reliable without being too expensive.
• Carbon dioxide emissions from power plants can't be regulated under Section 111(d) because those units are already subject to toxic pollutant limits under Section 112.
• The EPA significantly revised the Clean Power Plan between the proposed and final rules without offering an adequate opportunity to comment on the changes.
Scalia Cautioned Against New Authorities
In Util. Air Regulatory Grp. v. EPA, Scalia cautioned the EPA that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy' ... we typically greet its announcement with a measure of skepticism.” Opponents of the Clean Power Plan in their opening briefs argue that is exactly what the agency is attempting to do with its authority under Section 111(d) of the Clean Air Act.
Section 111(d) requires the EPA to set “standards of performance for any existing source for any air pollutant” being regulated, but opponents of the Clean Power Plan argue that building new, cleaner generation or shifting to existing natural gas-fired units does not constitute setting a performance standard for the power industry.
“Requiring an owner or operator of a fossil fuel-fired source to construct, or to subsidize generation at, other facilities, as the rule does, is not a standard ‘for' that source at all,” they argued.
While the act requires the EPA to determine the “best system of emission reduction,” opponents of the Clean Power Plan argue that is limited to the types of pollution controls that can be implemented at individual power plants and cannot be broadly applied to the entire power sector in each state.
“This reading of Section 111(d) to permit standards based on ‘generation shifting' is unambiguously foreclosed by the language of the statute, established case law and nearly a half century of consistent administrative practice,” the states and utilities said.
Useful Life of Regulated Plants
Setting standards based on the entire power sector rather than individually regulated units also violates the Clean Air Act's requirement that states be allowed to take into consideration the remaining useful life of the regulated power plants, the opponents argued. By contrast, the new source performances standards the EPA issued for new and modified power plants under Section 111(b), which must be in place before it can regulate existing units under Section 111(d), set carbon dioxide emissions limits for individual facilities.
“[I]n EPA's parallel rulemaking to establish standards of performance for new units under section 111(b), EPA determined that it could not read the term ‘best system of emission reduction' in section 111(a)(1) to set standards of performance based on shifts in generation from new plants to other sources with lower emissions but would consider only reductions that those plants could themselves achieve,” the opponents argued.
The Clean Power Plan also stands the Clean Air Act on its head by setting standards for existing power plants that are effectively more stringent than those for new and modified units, upending decades of agency practice, the opponents said.
“Indeed, under EPA's inconsistent reading of Section 111, the rule's emission reduction requirements cannot be met even if every coal- and natural gas-fired plant is closed and replaced with brand new plants using what EPA has determined to be state-of-the-art technology,” they said.
In a separate brief addressing procedural flaws with the Clean Power Plan, opponents argued that the EPA has not demonstrated that its rule will achieve the desired carbon dioxide emissions reductions while still ensuring grid reliability.
“EPA bears the burden to show that its selected ‘best system of emission reduction' has been adequately demonstrated to be reliable, efficient and not exorbitantly costly,” opponents argued. “EPA must also show the emission guidelines derived from that system are ‘achievable' by individual sources, operating in the real world. Conjecture, speculation, and crystal ball inquiries do not suffice.”
Toxics Rule Bars Carbon Dioxide Standards
Clean Power Plan opponents also argued that the EPA was barred from regulating carbon dioxide from power plants under Section 111(d) because they are already subject to hazardous air pollutant limits under Section 112.
“In five analyses spanning three different administrations — in 1995, 2004, 2005, 2007 and 2014 — the agency consistently concluded that this text means that ‘a standard of performance under CAA section 111(d) cannot be established for any air pollutant ... emitted from a source category regulated under section 112,' repeatedly describing this as the text's ‘literal' meaning,” they said.
Conflicting amendments to Section 111(d) were both signed into law when the Clean Air Act was last amended in 1990. The House language would prevent the EPA from regulating industrial sources under Section 111(d) if they are already subject to toxic pollutant standards under Section 112, as are power plants. The Senate's language only bars the agency from regulating the same pollutants under both sections of the act. While both amendments are reflected in the statutes at large, only the House language appears in the U.S. Code.
The EPA in its final rule had revised and expanded its interpretation of the conflicting Section 111(d) amendments, arguing that neither on their face barred the agency from regulating both hazardous air pollutants under Section 112 and carbon dioxide under Section 111(d) (153 DEN A-7, 8/10/15).
In response, the Clean Power Plan opponents again cited Scalia's opinion in Util. Air Regulatory Grp. v. EPA, where he reminded the EPA that it “may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”
Rule Radically Changed From Proposal
Opponents of the rule also argued that the Clean Power Plan was fundamentally altered between its proposal and finalization, violating the public participation requirements of Section 307 of the Clean Air Act.
“Meaningful participation is impossible when EPA proposes one thing and finalizes something else entirely,” they said.
The EPA had proposed state requirements based on a complex formula that produced a blended emissions rate for both coal- and natural-gas fired units. However, the final Clean Power Plan standards are based on uniform national emissions rates for coal and gas power plants, an approach the EPA had previously rejected.
“Every other element of the rule flows from these two performance rates,” opponents said. “Yet neither rate, nor even the concept of such a rate, was noticed in the proposed rule.”
The emissions rates used to set the final state requirements are so different from what the EPA had proposed that they cannot constitute “logical outgrowths” of the proposed rule in response to the public notice and comment process, opponents said.
“No one could have divined from EPA's proposal that a final rule based on uniform, nationally-applicable performance rates was even a possibility, that units not even addressed in the proposal would be regulated, or that EPA would apply an entirely different methodology with new data in establishing those rates,” they said. “Such silence in a proposal does more than frustrate meaningful comment; it assures no comment.”
Briefs from intervenors and amici in support of the petitioners are due Feb. 23. The EPA's response is due March 28.
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Group Tells Court EPA Took 'Marching Orders' From Lobbyists
Feb 22, 2016 | E&E News PM
By Ellen M. Gilmer
As a throng of challengers file legal briefs criticizing the Obama administration's Clean Power Plan as overreaching and unconstitutional, one group is stepping forward with a simpler, but serious, allegation: U.S. EPA let lobbyists write the rule.
The Energy & Environment Legal Institute told the U.S. Court of Appeals for the District of Columbia Circuit on Friday that EPA's controversial climate rule should be sent back to the drawing board because the agency crafted provisions of the plan through "backdoor dealings" with environmental lobbyists.
"Clearly EPA was taking its marching orders from outside the agency," said David Schnare, general counsel for the conservative watchdog group. "Well, that's against the law, frankly."
In its filing and a related report, the legal institute refers to specific ex parte communications between Michael Goo, a former senior policy adviser at EPA, and staffers at the Sierra Club, Natural Resources Defense Council and Clean Air Task Force. The group says Freedom of Information Act requests revealed emails from 2011 in which Goo used both his official and personal email accounts to share planning documents and drafts of rule provisions with members of the environmental groups. Goo previously worked as NRDC's climate legislative director.
EPA and the Clean Air Task Force declined to comment on the allegations. David Goldston, director of government affairs for NRDC, said the group stands by its advocacy work.
"NRDC advocated for a plan to cut carbon pollution in a way that maximized utility flexibility and minimized cost," he said in an emailed statement. "We stand behind our work to ensure citizen input in public policymaking."
The Sierra Club also defended its efforts, noting that the emails with Goo came before EPA’s Clean Power Plan proposal and addressed concepts that did not form the basis of the Clean Power Plan.
"The Sierra Club has a very effective Beyond Coal campaign and we have been aggressively fighting to protect our air, our water, and our communities from toxic coal pollution for years," spokesman Adam Beitman said in an email. "So, no one should be surprised that our work includes contacting public officials. … Of course, distorting the facts to help big polluters is par for the course for the fossil fuel front group pushing these attacks."
The legal institute has been tracking EPA communications with interest groups for years and released a report last summer making similar claims about emails between agency officials and environmental groups during the Clean Power Plan rulemaking process (EnergyWire, Aug. 3, 2015).
"The result of this deficiency is that commenters could not have known that the Rule was drafted through such extensive ex parte contacts with environmental groups with whom Mr. Goo once worked when employed by NRDC," the group said in the filing. "Such secrecy is inconsistent with fundamental principles of due process, fair notice, and accountable government."
The legal institute's filing was separate from the two opening briefs filed by more than 150 states, utilities, coal companies and business groups Friday (EnergyWire, Feb. 22). Those briefs focused on core legal issues and procedural problems with the Clean Power Plan and were subject to strict word counts from the court. Schnare said his group, represented by the Free Market Environmental Law Clinic, made a supplemental filing -- which has not yet been formally accepted by the court -- to emphasize transparency concerns that did not make it into the other briefs.
"When you have 82 lawyers around a table trying to sort out who gets which words and who gets to hold the pen, some issues just don't get the space," Schnare said. "When ours got carved, we were the only ones standing up and saying, 'Look, these transparency issues are critical to our client.'"
He added that he's not sure the D.C. Circuit will agree to consider the institute's arguments when the judges already have 40,000 words' worth of briefing against the Clean Power Plan but argued that the transparency issue is critical and distinct from the other legal contentions.
"It's just such a different perspective," he said. "We don't know what the court will do. At least the concepts are out there, and they're in the public."
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E&C Panel To Vote On Bills To Ease Brick Regs, Aid Minority Workers
Feb 23, 2016 | E&E Daily News
By Sean Reilly
The House Energy and Commerce Committee is set to wade through a 17-bill markup tomorrow and Thursday that includes measures to ease air pollution regulations on brick makers and a small piece of the electric power industry.
Bills on the agenda include one from Rep. Mike Pompeo (R-Kan.) that would allow use of aerial surveys for Federal Energy Regulatory Commission's natural gas infrastructure reviews and others to roll back the deadlines for the start of hydroelectric dam projects in various states.
The bulk of the legislation won approval two weeks ago from the committee's Energy and Power Subcommittee, albeit over Democratic objections in some cases. The markup also appears aimed at assuaging the complaints of the subcommittee's top Democrat, Rep. Bobby Rush of Illinois, that lawmakers are pressing ahead with legislation to benefit favored industries while ignoring his bill aimed in part at increasing the number of minority workers in the energy sector.
The agenda includes a measure "to promote a 21st century energy and manufacturing workforce," with Rush and Rep. Richard Hudson (R-N.C.), another committee member, listed as the sponsors. While the agenda indicates that neither that bill nor a measure by Rep. Greg Walden (R-Ore.), chairman of the committee's Communications and Technology Subcommittee, had been introduced as of yesterday, both will be in the pipeline by the markup, a committee spokesman said in an email.
"Taken together, these bills are a big win for jobs, domestic energy security, and consumers across the country," E&C Chairman Fred Upton (R-Mich.) said in a statement late yesterday. "They exemplify the committee's ongoing commitment to advance thoughtful legislative solutions and are something we should all be able to agree on."
But both H.R. 4557, the "Blocking Regulatory Interference from Closing Kilns (BRICK) Act," sponsored by Rep. Bill Johnson (R-Ohio), and H.R. 3797, the "Satisfying Energy Needs and Saving the Environment (SENSE) Act" by Rep. Keith Rothfus (R-Pa.) have run into objections from U.S. EPA and committee Democrats.
The "BRICK Act" would bar EPA from enforcing recently set emissions limits on brick and clay ceramics manufacturers until all lawsuits surrounding the regulations are settled. Rothfus' measure would relax some regulations on air pollutants from power plants that burn coal refuse. The act is intended to keep companies from spending money on the new rules when they're still at risk of being struck down in a court ruling, as happened almost a decade ago with a previous set of regulations, according to Johnson.
The new rules are already entangled in lawsuits both from environmentalists and industry groups; in a recent statement, acting EPA air chief Janet McCabe said the bill would act as an incentive to string out the litigation as long as possible.
McCabe also objected to the "SENSE Act," in part because the more lenient standards proposed for coal refuse plants would entail tighter emissions limits for other coal-fired plants when it comes to compliance with the Cross-State Air Pollution Rule, intended to curb emissions of nitrogen oxides that waft across state lines.
At a Feb. 3 hearing, however, Rothfus said that the survival of some coal-refuse power operations -- which have a disproportionately large presence in Pennsylvania -- is threatened by the cost of meeting both the cross-state pollution rule and EPA's Mercury and Air Toxics Standards (MATS) adopted last year.
Although all plants can meet MATS's mercury restrictions, Rothfus said, many won't be able to comply with the accompanying limits on releases of hydrogen chloride and sulfur dioxide.
The bill would instead set "alternative compliance standards that are strict but achievable," Rothfus said. The legislation would also give plants extra credits for sulfur dioxide emissions in the second round of CSAPR implementation scheduled to begin next year, he said.
Although the Obama administration has not taken a formal stand on either bill, McCabe's criticisms were echoed by Democratic lawmakers at the subpanel markup. While those objections are unlikely to keep the legislation from passing the House, they could prove a much bigger stumbling block in the Senate.
Other bills on the agenda: The "Small Business Broadband Deployment Act," an unnumbered bill by Walden. An unnumbered bill to promote a 21st-century energy and manufacturing workforce, from Reps. Hudson and Rush. H.R. 1268, from Rep. Anna Eshoo (D-Calif.), to require federal agencies to use more efficient technology at government-run data centers. H.R. 2080, from Rep. Ryan Zinke (R-Mont.), involving a project at the Clark Canyon Dam in Montana. H.R. 2081, also by Zinke, involving a project at Gibson Dam in Montana. H.R. 2984, from Rep. Joe Kennedy (D-Mass.), to allow for rehearings of FERC orders affecting electricity rates. H.R. 3021, by Pompeo, to permit the use of aerial surveys in natural gas pipeline reviews. H.R. 3447, from Rep. Virginia Foxx (R-N.C.), involving a project at the W. Kerr Scott Dam and Reservoir in North Carolina. H.R. 4238, from Rep. Grace Meng (D-N.Y.), to update terms in the U.S. Code referring to minority groups. H.R. 4411, from Rep. Morgan Griffith (R-Va.), involving a project at the Gathright Dam in Virginia. H.R. 4412, also from Griffith, involving a project at the John W. Flannagan Dam in Virginia. H.R. 4416, from Rep. David McKinley (R-W.Va.), involving a project at Jennings Randolph Lake in West Virginia. H.R. 4427, from Pompeo, to clarify FERC's jurisdiction in reviewing sales of smaller generating plants under the Federal Power Act. H.R. 4434, from Rep. Chris Gibson (R-N.Y.), involving a project at the Cannonsville Dam in New York. H.R. 4444, from Rep. Renee Ellmers (R-N.C.), to exempt power supplies for LED lighting -- known as solid-state lighting drivers -- from a new energy efficiency rule.
Schedule: The markup will convene at 5 p.m. Wednesday, Feb. 24, in 2123 Rayburn for opening statements and then resume in the same location on Thursday, Feb. 25, at 10 a.m.
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U.S. Greenhouse Gas Emissions Rise 0.9 Percent
Feb 23, 2016 | BNA Daily Environment Report
By Anthony Adragna
Domestic greenhouse gas emissions rose 0.9 percent from 2013 to 2014, spurred upward by increased industrial production and a relatively cold winter, the Environmental Protection Agency said in a draft report released Feb. 22.
Greenhouse gas emissions totaled the equivalent of 6,872.6 million metric tons of carbon dioxide in greenhouse gases in 2014, the latest year reported, and overall emissions increased by 7.7 percent from 1990 to 2014, according to the draft Inventory of U.S. Greenhouse Gas Emissions and Sinks. U.S. emissions peaked at 7,450 million metric tons of carbon dioxide-equivalent in 2007.
Carbon dioxide accounted for 81 percent of overall greenhouse gas emissions, and the primary source of it was the combustion of fossil fuels, according to the report. Emissions stemming from the burning of fossil fuels have increased, on average, by 0.4 percent annually since 1990.
Methane was the next greatest contributor to greenhouse gas emissions with 10.3 percent of the U.S. total. Emissions of the highly potent greenhouse gas are down 37.4 million metric tons of carbon dioxide-equivalent from 1990 levels.
Emissions totaled 6,811.2 million metric tons of carbon dioxide in 2013, which is 0.9 percent less than 2014 levels, according to the report. The U.S. has pledged to slash its greenhouse gas emissions 26 percent to 28 percent by 2025 from 2005 levels as part of a December international agreement to combat climate change (40 DEN A-1, 3/2/15).
Public comments on the draft report are due March 23.
Power Plants Greatest Emitters
Power plants were largest domestic source of carbon dioxide emissions in 2014 with 2,039.3 million metric tons of carbon dioxide-equivalent. That is nearly unchanged from 2013, according to the report.
The transportation sector was the next-greatest contributor to carbon dioxide, according to the report. In 2014, it accounted for 1,737.4 million metric tons of carbon dioxide-equivalent, which is an increase from the 1,713.0 million metric tons it emitted in 2013.
Regulatory efforts from the Obama administration have sought to curb emissions from both sectors. Those include the Clean Power Plan (RIN 2060-AR33) and proposed strengthened federal efficiency standards for medium- and heavy-duty trucks (RIN 2060-AS16; RIN 2127-AL52).
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EPA: US Greenhouse Gas Emissions Increased Slightly In 2014
Feb 22, 2016 | The Hill - E2 Wire
By Devin Henry
American greenhouse gas emissions increased by less than 1 percent in 2014, according to new Environmental Protection Agency (EPA) data released this week.
In the draft version of the EPA’s annual greenhouse gas report, the agency said emissions in the U.S. increased by 0.9 percent between 2013 and 2014 after a 2.2 percent increase the previous year.The EPA blamed the increase on higher fossil fuel consumption in the energy and transportation sectors.
A cool winter in 2014 lead to more residential and commercial heating needs, the agency said, and a rise in industrial production meant more emissions there. Americans travelled more miles in vehicles, the agency said, which coincided with a small bump in emissions in the transportation sector.
Caron dioxide emissions — which made up 81 percent of total emissions in the U.S. — increased slightly between 2013 and 2014, the second straight annual increase after a small decline between 2011 and 2012, the agency said.
In all, the U.S. accounted for 6,873 million metric tons of carbon dioxide-equivalent in 2014. That figure is still about 7.5 percent less than emissions in 2005, the baseline used for Obama administration greenhouse gas reduction goals.
The draft study released this week comes as the EPA finalizes its annual emissions report, which is due to the United Nations in April.
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Green Groups Ready Lobbying Machine For Confirmation Fight
Feb 23, 2016 | E&E Daily News
By Kevin Bogardus
Sensing a chance to fundamentally reshape the nation's highest court, environmental groups have begun to prime their advocacy game in support of President Obama's looming Supreme Court nominee.
Activists say the high court may end up deciding the president's energy and environment legacy. Justices earlier this month, for example, threw the White House and state greenhouse gas reduction plans into chaos by blocking U.S. EPA's Clean Power Plan.
The late Antonin Scalia, a legal conservative champion, was one of the five justices to vote for staying EPA's rule pending ongoing litigation. Observers saw the move as a signal the Supreme Court could ultimately overturn the landmark rule.
Now that Scalia has died, however, environmental groups and other Obama supporters see an opening to shift the court's balance toward a more liberal bent.
Lobbying shops have since gone into overdrive, with the president pledging to send the Senate a Supreme Court nominee despite Republican demands he leave the decision to his successor.
Environmental groups are among the many left-leaning interests pushing for the Senate to hold hearings and vote on the coming Supreme Court nominee.
Glenn Sugameli, a senior attorney for Defenders of Wildlife, told E&E Daily he has been working "full time" on the Supreme Court nomination battle since news of Scalia's death went public.
"Clearly, this is going to be a major issue for however long it takes to fill the seat," Sugameli said. "This is something that needs to be done."
Without a replacement for Scalia, Supreme Court tie votes would leave lower court rulings in place, which could benefit the president's agenda. Still, Sugameli said the high court was necessary to clear up conflicting rulings.
"The Court being now split 4-4 could lead to paralysis," Sugameli said. "It doesn't just leave lower court decisions alone. It leaves competing lower court decisions alone."
Sugameli is also founder of Judging the Environment, a research project of Defenders of Wildlife that advises environmental groups on federal judicial nominations.
Since Scalia's passing, he has been sending emails to members of the press and supporters and compiling newspaper editorial board statements in support of Senate action on Obama's upcoming nominee. Sugameli has also been monitoring public opinion polls and senators' statements on a potential Scalia replacement.
"So many environmental issues are decided in the courts, whether they're enforced or upheld," Sugameli said. "The environmental groups need a very reasonable judge, someone who will enforce and uphold the laws that are on the books." 'Stakes could not be higher'
Other groups have likewise been revving up their lobbying machines in response to the Supreme Court vacancy.
On Friday, the League of Conservation Voters sent members an action alert requesting they tell Senate Majority Leader Mitch McConnell (R-Ky.) not to block Obama's pick for the high court.
The environmental group is also pushing its message on social media and plans to lobby lawmakers directly as action heats up on Capitol Hill.
LCV President Gene Karpinski wrote an op-ed last week saying the group planned to engage its 1.3 million members to contact their senators on the issue.
Karpinski, writing in the online platform Medium, cited recent victories for the environmental movement -- including Obama rejecting the Keystone XL pipeline, the Clean Power Plan and the Paris climate accord.
"The stakes truly could not be higher for the Supreme Court battle that lies ahead, which is why the League of Conservation Voters (LCV) is already gearing up and intends to engage in this fight more aggressively than any past judicial nominations," Karpinski wrote.
Another environmental group, Earthjustice, plans to contact supporters on the Supreme Court battle and has also been reaching out to potential allies through social media.
Marty Hayden, vice president of policy and legislation for the group, told E&E Daily he would be lobbying senators on the high court nominee.
"We will be joining with many other groups across the spectrum in support of filling this crucial vacancy," Hayden said, adding that "it's not really tenable for the Supreme Court to languish like this for this long."
Hayden noted: "If McConnell follows through on his threat, that would leave us without a full Court well into the next term. That would be completely unprecedented." Conservatives seek to bolster GOP opposition
While environmentalists and other liberal supporters of the president will keep making a case to replace Scalia now, conservative groups are increasingly pushing Republican senators to hold firm.
Lobbyists for Heritage Action for America, an advocacy group with ties to the Heritage Foundation, have been in discussions with Senate aides about an expected replacement to fill Scalia's seat.
"Right now, things are in pretty good shape. It's just making sure that this doesn't become a political liability for them [Senate Republicans], which it shouldn't," said Dan Holler, vice president of communications and government relations for the group. "By and large, the position by Senate Republicans to have a nominee wait until after the next election is becoming the position."
Heritage Action has also been active on social media and has emailed supporters to gin up support for having senators wait until after the November elections to replace Scalia.
"If there is one thing that can cut through the clutter of a presidential election, it's the Supreme Court. Conservative activists are already in tune and engaged," Holler said.
Others in the conservative political realm have also begun to juice up their advocacy work in preparation of the high court pick.
Last week, FreedomWorks sent an action alert with a message opposite to LCV's. The conservative group urged members to tell McConnell to block any Obama Supreme Court pick.
By the end of the week, FreedomWorks members had sent the Senate leader's office more than 15,000 messages, according to spokesman Jason Pye.
"We are currently gathering petition signatures to deliver to Leader McConnell and Chairman Grassley's offices, perhaps others who may be on the fence, to show that conservatives want to protect Justice Scalia's legacy," Pye said in an email.
GOP senators who may sway from the party's stance by calling for hearings and votes on a high court pick can expect to hear from FreedomWorks.
"We're tracking every Republican senators' public statements on this. If we get the impression that they're going soft, they're going to hear from the FreedomWorks community," Pye said.
With such passion on each side of the debate, one can expect the Supreme Court debate to consume lawmakers on Capitol Hill and affect pending work.
Sugameli said, "There will be a nominee, and there should be a hearing, and no matter what happens in committee, that nominee should have an up-or-down vote in the full Senate."
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Waxman Successor Follows In His Footsteps On Climate Advocacy
Feb 23, 2016 | E&E Daily News
By Amanda Reilly
Rep. Ted Lieu (D-Calif.) knows he has big shoes to fill.
Early last year, Lieu, 46, took the Los Angeles-based seat of now-retired Rep. Henry Waxman (D), who served in Congress for four decades and was long considered one of the House's top climate change champions.
"If I could do half as much as he did, it would be an astounding success," Lieu said in a recent interview in his fourth-floor Capitol Hill office in the Cannon House Office Building.
His first piece of introduced legislation was a bill that would replicate California's cap-and-trade law across the entire country. A former securities lawyer, Lieu has also taken a lead in pushing businesses to disclose climate risks, an issue that's been in the forefront since investigations accused Exxon Mobil Corp. of misleading the public about the changing climate.
The current Republican-led Congress is unlikely to pass any climate change legislation, though. Many GOP members have expressed doubts about man-made warming and warn that actions to limit greenhouse gas emissions would hurt the economy.
While he's optimistic that lawmakers will one day tackle climate change, Lieu said he's also a realist who understands that the dynamics of Congress are not currently in his favor.
"I grew up in Cleveland. I'm a long-suffering Cleveland Browns fan. So it's taught me to be patient," he joked. (The Browns have never appeared in a Super Bowl game.)
Freshman Rep. Ted Lieu (D-Calif.) is pressing his colleagues to act on climate change. Photo by Tom Williams, courtesy of AP Images.
Waxman, who now works with his son at Washington, D.C., consulting firm Waxman Strategies, endorsed Lieu for his seat and said in a recent interview that he's happy with the new congressman's work so far.
"When he campaigned, he campaigned on the idea that climate change was the most important issue we had to deal with, and he's lived up to that concern by introducing a cap-and-trade bill to reduce greenhouse gases," Waxman said. "I'm pleased to see he's taken such a leadership role as a brand new member."
Waxman, a former chairman and ranking member of the House Energy and Commerce Committee, expressed regret for not being able to himself push cap-and-trade legislation through Congress. With then-Rep. Ed Markey (D-Mass.), Waxman managed to get a climate bill through the House in 2009, but the legislation stalled in the Senate.
The bill's failure caused much soul-searching in the environmental movement and led the Obama administration to aggressively pursue executive action in the area of climate, a move that has led to complaints of overreach.
"I think there's a lot we need to do on climate change, and I think that, to me, is the unfinished business that I cared about," Waxman said. "But I don't see Congress doing that job right now. But I think at some point, working with this administration and the next, I think Congress will recognize that it has a role to play."
His successor, Lieu, was born in Taiwan, and his family immigrated to the United States when he was a young child. The family lived in Cleveland in the basement of someone's home while Lieu's parents sold gifts and jewelry at flea markets before eventually opening a gift store.
Lieu attended Stanford University, where he received undergraduate degrees in computer science and political science. He received his law degree from Georgetown University.
Lieu served on active duty in the Air Force for four years before settling in the Los Angeles area. After serving as a law clerk to the late Judge Thomas Tang in the 9th U.S. Circuit Court of Appeals, Lieu worked for the law firm Munger, Tolles & Olson and, later, for the legal office at UBS Financial Services Inc.
The future congressman began his public life in 2002 with a stint in the City Council of Torrance, a smaller city in the southwest region of Los Angeles County with beaches on the Pacific Ocean. He served in both California's state Assembly and Senate before beating Republican Elan Carr by a wide margin in 2014 to succeed Waxman.
Lieu said he's always had an interest in protecting the environment. Part of that interest, he said, comes from belief in an old saying that's frequently attributed to Native Americans: "We don't inherit the earth from our ancestors; we borrow it from our children."
He and his wife, Betty -- a state water commissioner -- have two boys who are 10 and 12 years old. He said one of his favorite things to do is bring his children to national parks; he ticks off Yosemite, Zion and Olympic among his top picks.
But it wasn't until he saw former Vice President Al Gore's 2006 documentary "An Inconvenient Truth," which explores the science of global warming, that Lieu took up climate change as a top issue.
"After I saw that, I concluded that there's a thousand issues that all of us face, but only one that can kill humanity as a species," he said. "And that would be climate change."
Observers of California politics characterized Lieu as a "reliable vote" for the environment and climate issues during his time in the state Legislature.
"He was always a leader there, always one of the reliable people we could count on," said Mike Young, political and campaign manager at the California League of Conservation Voters. "One thing we always appreciated about his time in the Legislature was that he was very thoughtful. He wanted to learn more about the issues. He always knew how to ask important questions."
In the state Legislature, Lieu signed on as a co-author to A.B. 32, California's landmark climate change law, and was adamant that revenues from the cap-and-trade program be directed back to fighting climate change.
He also authored green buildings legislation, as well as supported bills to increase access to solar energy for low-income families and to provide for investment in cleaner cars.
"I like him. He's a straight shooter. I felt like he knew where he stood on things," said Kathryn Phillips, director of the Sierra Club California. The California model
According to the Center for Responsive Politics, Lieu's top donors have been law firms, including his former employer Munger, Tolles & Olson. He was elected president of the House Democratic freshman class in the 114th Congress and currently serves on the House Budget and Oversight & Government Reform committees.
In April of last year, Lieu introduced the "Climate Solutions Act" to expand California's cap-and-trade program to the rest of the United States. The bill would require the United States to achieve a 40 percent reduction in greenhouse gas emissions by 2035 and 80 percent by 2050, both based on 1990 levels. U.S. EPA would have the authority to develop and enforce emissions targets.
The bill would also set a 33 percent renewable portfolio standard by 2025 and direct the Department of Energy to issue energy efficiency regulations. The legislation currently has 30 co-sponsors, all Democrats.
Lieu said his goal was to create a blueprint for future congressional action on climate.
"I acknowledge in the current environment, in a presidential year, it's very unlikely this is going to pass," Lieu said. "But eventually, we will have a different environment. And there will be climate change legislation passing, and I want this to set the standard for where we need to go."
In the past several months, Lieu, drawing from his experience as a securities lawyer, has pressed the Securities and Exchange Commission to better enforce its guidance for publicly traded companies on reporting climate change risks.
He's also been leading congressional Democrats to call for investigations of Exxon Mobil in the wake of reports that the public company hid what it knew about climate change for decades. It is reminiscent of Waxman in the 1990s pressing tobacco company executives to publicly acknowledge they had concealed their knowledge about the dangers of smoking.
In fact, in a letter last week to the Department of Justice asking for a separate investigation of Shell Oil Co. and whether it conspired with Exxon to hide climate change information, Lieu and other House Democrats cited DOJ's work in the area of the tobacco industry. They said the fossil fuel sector's actions were similar to those "employed by big tobacco companies to deceive the American people about the known risks of tobacco."
Lieu, who charges that Exxon has been misleading the American public, said he recently met with company officials and several House Oversight Democrats who have also expressed concerns. According to Lieu, top-level executives told the lawmakers they believe in climate change and support a carbon fee.
"So, today, that is what they believe," Lieu said. "Had they not obstructed and misled people for decades, I think we would be much further along in this climate change field."
Young of the California League of Conservation Voters said he's noticed an evolution in Lieu from merely being a consistent vote and co-author of environmental legislation to taking a leadership role on the issue in Congress.
"I think what we've seen since his time in Congress, he's really stepped up his climate game in a way that was really appreciated," Young said, "because we were losing someone who was really a champion and wanted to tackle this."
Lieu said he's been "absolutely" influenced by Waxman.
"The Waxman-Markey legislation was amazing, and keep in mind they got that through the House of Representatives," he said. It "gives people hope that if you fight hard enough, you can get legislation out, and it's only a matter of time before significant climate change legislation passes both houses."
Lieu called the limited Republican support for climate change action that's emerged over the past year "progress."
Last year, about a dozen House Republicans signed onto a resolution offered by retiring Rep. Chris Gibson (R-N.Y.) in support of climate change action. Earlier this month, GOP moderate Rep. Carlos Curbelo of Florida, a co-sponsor of that resolution, and Rep. Ted Deutch (D-Fla.) formed the first bipartisan climate caucus in the House.
"You have to keep pushing," Lieu said. "Ten years ago, if I would have told you there was going to be gay marriage in all 50 states, you would have thought I was smoking weed, illegally. Now there's legal marriage, gay marriage, in all 50 states -- and I believe pretty soon people will be able to smoke weed legally in all 50 states, too."
Lieu, whose district includes key sectors of the entertainment industry, credited TV shows with prominent gay characters such as "Modern Family" and "Will & Grace" for helping build support among the American public for gay marriage and said he's encouraged by seeing climate change entering popular culture more and more.
"'Inconvenient Truth' was awesome. I think it sort of was a wake-up call," Lieu said. "But then you had follow-on sort of documentaries and other sorts of films."
He laughed when asked whether the United States needs a sitcom about climate change.
"We wouldn't call it that," he said. "But yes, we do."
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Critics To Hammer EPA Over Ozone Standard
Feb 22, 2016 | E&E News PM
By Sean Reilly
Critics of U.S. EPA's actions against ozone pollution are planning to use an upcoming event to once again hammer the agency with concerns about compliance with a recently tightened standard.
EPA is touting a workshop this week on background ozone -- scheduled for Wednesday and Thursday in Phoenix -- as an opportunity "to advance the collective understanding of technical and policy issues" surrounding the hot-button topic.
Garrick Taylor, a spokesman for the Arizona Chamber of Commerce and Industry, said in a phone interview this afternoon: "I'm looking forward to hearing EPA's explanation for this new rule."
Taylor said that in Arizona, "you're looking at the potential for nearly 95 percent of the state's population to fall in a nonattainment status."
Also participating will be about a half-dozen board members from the Association of Air Pollution Control Agencies. The group of state regulators has questioned EPA's promises of tools to help them deal with background ozone.
"A lot of the same concerns will be raised, and I think folks are very interested in what EPA plans to present" beyond what is in a white paper EPA released late last year, said Clint Woods, the association's executive director.
EPA lowered the ambient air quality standard for ozone from 75 parts per billion to 70 ppb in October 2015. The new benchmark is at the upper end of the options the agency considered.
EPA Administrator Gina McCarthy tied the new guideline to recent scientific evidence about actions necessary to protect public health and the environment. Ozone, the main ingredient in smog, is a lung irritant that can worsen asthma and emphysema.
Attendance at the first day of the workshop is limited to employees of state, tribal and local air agencies. The second will be open to "all stakeholders," according to EPA's website.
The focal point is supposed to be the 27-page white paper, which says there is "no indication" that background ozone will prevent attainment with the new standard.
That prediction has come under sharp questioning by elected officials and business representatives in Western states where background ozone emanating from "stratospheric intrusions" -- like wildfires and other causes outside immediate human control -- tends to be a larger concern.
"I expect the EPA to receive an earful," said Karen Kerrigan, president of the Center for Regulatory Solutions, in a statement today.
The center, an offshoot of the Small Business & Entrepreneurship Council, an advocacy group, released a series of reports last year predicting that a tighter ozone standard would hurt the economies of Colorado and other states by forcing more areas out of compliance.
The center plans to have a representative at Thursday's session. The National Association of Manufacturers has scheduled a conference call with reporters for tomorrow morning that will preview two reports by the center, according to a news release.
The first document will look at how the lower ozone standard will affect Arizona's economy and small businesses. The second will highlight how EPA is regulating "ahead of having a firmer understanding of background ozone and the tools for states like Arizona to address it," the release said.
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6th Circuit's Decision To Hear CWA Rule Suit Spurs Fresh Legal Confusion
Feb 22, 2016 | InsideEPA
By Bridget DiCosmo
The U.S. Court of Appeals for the 6th Circuit's divided decision to hear consolidated suits over EPA's Clean Water Act (CWA) jurisdiction rule creates fresh legal confusion, as it fails to resolve whether the myriad federal district court cases over the rule will continue and the majority's reasoning could be vulnerable to a rehearing request.
Judge David McKeague in a lead opinion in Murray Energy Corp., v. EPA, et al., issued Feb. 22 found that “recognition of our authority and our duty to directly review the Clean Water Rule in this multi-circuit case is in all respects consonant with the governing case law and in furtherance of Congress’s purposes.”
But the opinion drew a reluctant concurrence from fellow Judge Richard Allen Griffin who only supported the decision to take the case because it is in line with precedent established by the 6th Circuit in a 2009 ruling in National Cotton Council of America v. EPA. Griffin said that he thinks National Cotton was decided erroneously, and if the ruling did not exist he would have sided with dissenting Senior Judge Damon J. Keith.
One legal source says the “weak concurrence and strong dissent” make the decision to hear the CWA rule suits “very ripe” for the petitioners to seek re-hearing of the decision en banc by the full 6th Circuit.
Further, the ruling fails to resolve what will happen to the at least 13 district court cases over the rule across the country, outside of the 6th Circuit states of Kentucky, Michigan, Ohio and Tennessee . “I am not aware of any requirement that district courts in other circuits outside the 6th [Circuit] have to abide by this 2-1 opinion in any event -- no way the mess is cleared up,” the source says.
Observers had previously questioned whether a ruling by the 6th Circuit upholding its authority to hear the case would be seen as persuasive by the district courts considering challenges to the CWA rule. Only one of 14 challenges, filed in the U.S. District Court for the Southern District of Ohio, falls within the 6th Circuit.
Many of the district courts opted to stay litigation pending a ruling by the 6th Circuit, although at least one district court case -- in the U.S. District Court for the District of North Dakota -- is proceeding.
Even though EPA won its preferred venue of the an appellate court to hear the consolidated appellate challenges to the rule, the court's decision to take the case might have adverse consequences for the agency.
McKeague and Griffin in an Oct. 9 order blocking the rule's implementation suggested if they found they had jurisdiction to review the rule, they would likely scrap it for exceeding EPA's authority.
Keith dissented from that order, calling it premature of the court to issue an injunction blocking the rule before it determined whether it has jurisdiction to hear the litigation over the policy. The stay remains in effect pending a further order from the court, so EPA is for now using Bush-era guidance on CWA jurisdiction rather than the Obama EPA and Army Corps of Engineers' rule that aimed to resolve uncertainty about the scope of the water law.
Another appellate case on the rule is pending in the 11th Circuit, where Georgia and 10 other states are seeking to overturn a federal district court ruling that said the appellate court is the correct venue for the suit. Late last year, the 11th Circuit rejected a push from the states to fast-track the briefing ahead of the 6th Circuit's briefing schedule. The 11th Circuit recently canceled oral argument pending a decision from the 6th Circuit on whether it had authority to hear suits over the rule, and at press time had not issued an order in response to the ruling.
Court's Ruling
Uncertainty over whether the 6th Circuit would take the case stems from a lack of specificity in the CWA about where challenges to the regulation could be heard.
Many environmental statutes, including the Clean Air Act and the Resource Conservation & Recovery Act, provide that judicial review of final agency rules must proceed in a court of appeals as opposed to a federal district court. But section 509 of the CWA says that only specific types of rules must be initiated at the appellate level.
Section 509 of the water law says that legal challenges to approval or promulgation of any effluent limitation “or other limitation” under sections 301, 302, 306, or 405, permit approvals under section 402, or individual water quality control strategies under section 304 must seek initial review in an appeals court.
However, the CWA jurisdiction rule does not fall within a specific section of the water law, leaving the issue in the hands of the courts reviewing initial challenges. Coal company Murray Energy -- the petitioner in the 6th Circuit litigation -- and other EPA critics argue that district courts are the correct venue, but EPA and the Corps argue that the appeals courts must hear the cases because the rule falls within section 509.
The agencies argued that both prongs of section 509 grant the appeals court exclusive jurisdiction to hear the petitions for review, because the rule represents both an "other limitation” under section 509(b)(1)(e) and a permit governance under section 509(b)(1)(f), and McKeague sided with the agencies.
McKeague held that while there is some support in the statutory language for the petitioners' argument that the rule falls outside the narrow scope of the judicial review provisions in the CWA, Supreme Court and 6th Circuit precedent favor a “'functional' approach under a 'formalistic' one” in interpreting the provisions.
That position is further supported by the fact that the district courts hearing the slew of challenges to the rule have split on the issue of whether the appeals or district courts have jurisdiction to hear the suits, McKeague writes. “Conversely, to rule that we lack jurisdiction would be to contravene prevailing case law and frustrate congressional purposes without substantial justification,” his opinion says.
McKeague asks whether the rule, which is definitional in nature but could result in imposition of limitations when in conjunction with other regulations, would fall under section 509(b)1)(e) given that the regulatory consequences are indirect. He agrees with Department of Justice attorneys that the Supreme Court's 1977 ruling in E.I. Du Pont de Nemours Co. v. Train supports a reading of section 509(b)(1)(e) that would include not only the specific regulatory programs listed but also the “basic regulations governing those individual actions.”
Congressional Intent
Moreover, he notes that the 2013 8th Circuit ruling in Iowa League of Cities v. EPA, the 4th Circuit in the 1977 ruling Virginia Elec. & Power Co. v. Costle, and the 1982 District of Columbia. Circuit ruling in Natural Resources Defense Council v. EPA show that other circuits have been willing to defer to E.I. du Pont as license to construe Congressional intent of the language in section 509(b)(1)(e) as broader than its language indicates.
“Hence, although the Rule is definitional in nature, it is undeniably, in the language of E.I. Du Pont, a 'basic regulation governing other individual actions issuing or denying permits,'” McKeague writes.
Viewing the rule in the light of E.I. du Pont reveals that the “practical effect” of the CWA rule will be to indirectly produce various limitations on point-source operators and permit issuing authorities,” McKeague writes.
“Accordingly, although the Rule does not itself impose any limitation, its effect, in the regulatory scheme established under the Clean Water Act, is such as to render the Rule, per the teaching of E.I. du Pont and its progeny, subject to direct circuit court review under 509(b)(1)(E),” the ruling says.
On section 509(b)(1)(f) McKeague holds to National Cotton's finding that the provision applies to not only those actions issuing or denying particular permits but also of regulations that govern permit issuance, saying that the CWA rule extends some protection to jurisdictional waters not previously protected. “This extension indisputably expands regulatory authority and impacts the granting and denying of permits in fundamental ways.”
McKeague cites E.I. du Pont, a 1980 9th Circuit ruling in Crown Simpson Pulp Co. v. Costle, and Florida Power & Light Co. v. Lorion, a 1985 Supreme Court ruling, saying they demonstrate a “strong preference” for construing Congress' provisions accounting for judicial review by a “practical, functional approach.”
Concurring Opinion
But in his concurring opinion, Griffin agrees that the 6th Circuit has jurisdiction to review the case, but makes it clear is doing so “only because I am required to follow our precedentially-binding decision” in National Cotton.
Griffin rejects McKeague's interpretation of the statute, saying, “As with all matters of statutory construction, we should apply a textualist, not a 'functional' or 'formalistic,' approach. . . . In my view, it is illogical and unreasonable to read the text of either subsection (E) or (F) as creating jurisdiction in the courts of appeals for these issues.”
Griffin writes that the question should turn on whether Congress created jurisdiction for the appellate courts to hear the case, not whether jurisdiction is “desirable” for judicial economy or public policy purposes.
However, Griffin held in the concurrence, “Nonetheless, because National Cotton held otherwise with respect to subsection (F), I concur in the judgment, only,” but disagrees that National Cotton was correctly decided.
Griffin writes that under a plain text reading, EPA's rule “neither issues nor denies” a CWA permit. “In my view, this should end the analysis,” but he adds that he is constrained by the 6th Circuit's precedent in National Cotton that 'issuing or denying any permit' means more than just that,” adding, “It is a broad authorization to the courts of appeals to review anything relating to permitting notwithstanding the statutory language to the contrary.”
Judge's Dissent
Keith in his two-page dissent sided with Griffin's reasoning that the plain meaning of the statute does not support a reading of the judicial review provisions that can confer jurisdiction on the appeals courts.
But the judge disagrees with Griffin's “expansive” view of National Cotton, saying the ruling expanded subsection 509(b)(1)(f) to cover rules that “regulate the permitting procedures,” citing American Mining Congress v. EPA, a 1992 9th Circuit ruling, in its description of National Cotton's “limited expansion” of the the statutory language -- as opposed to the concurrence which says National Cotton includes anything related to permitting procedures.
“That a rule 'relates' to a permitting procedure does not mean that it 'regulates' or 'governs' that procedure,” Keith writes. “Therein lies the analytical fallacy in the concurrence.”
Rather, Keith writes, “If this court construes that holding to be so broad as to cover the facts of this case, that construction brings subsection (F) to its breaking point: a foreseeable consequence of the concurrence’s reasoning is that this court would exercise original subject-matter jurisdiction over all things related to the Clean Water Act.” Following issuance of the divided ruling, Murray Energy said it welcomed the decision that the 6th Circuit has jurisdiction to hear the suit. “Murray Energy was the first to file this litigation in the 6th Circuit, and we are prepared to proceed in that court now that it has ruled on jurisdiction,” the company said in a Feb. 22 press release. “We look forward to continuing our litigation against this illegal rule and having the rule completely invalidated on the merits.”
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Feb 22, 2016 | The Washington Post
By Jonathan H. Adler
Today a splintered three-judge panel of the U.S. Court of Appeals for the 6th Circuit concluded that it has jurisdiction to review challenges to the controversial “waters of the United States” (WOTUS) rule. This regulation, issued by the Environmental Protection Agency and the Army Corps of Engineers, seeks to clarify and expand the agencies’ regulatory jurisdiction under the Clean Water Act. The rule is a response to two Supreme Court decisions holding that the EPA and Army Corps had asserted unduly broad regulatory authority; it is now subject to more than 20 separate challenges filed by numerous states and interest groups.
In In re: U.S. Department of Defense and U.S. Environmental Protection Agency Final Rule, the 6th Circuit rejected arguments that proper jurisdiction to review challenges to the WOTUS rule lies in federal district courts. Instead, two of the three judges on the panel concluded, applicable 6th Circuit precedent provided the 6th Circuit jurisdiction to hear the consolidated challenges to the WOTUS rule. Given the 6th Circuit’s prior decision to stay the rule, pending resolution of the jurisdictional challenge, this would seem to indicate that things look good for those challenging the rule for exceeding the scope of the CWA or not being a “logical outgrowth” of the proposed rule published in the Federal Register.
Judge David W. McKeague, who announced the opinion of the court, concluded that the 6th Circuit has jurisdiction to hear the challenges under either 33 U.S.C. § 1369(b)(1)(E) or (F). While acknowledging that the WOTUS rule does not fit neatly into the categories for which § 1369 provides for circuit court jurisdiction, McKeague concluded that these provisions have been given expansive interpretations by the courts, sufficient to provide for jurisdiction.
Judge Richard Allen Griffin concurred in the result. While Griffin concluded that neither statutory provision provided for jurisdiction, he nonetheless concluded that the court was obligated to conclude that there is jurisdiction under § 1369(b)(1)(F) given the 6th Circuit’s decision in National Cotton Council of America v. U.S. EPA, in which a prior panel had held that the court has jurisdiction over any regulation “governing” permits. As Griffin explained, while there would be no jurisdiction under a “plain text reading” of the statute, he concluded he was “constrained by our court’s precedent holding that ‘issuing or denying any permit’ means more than just that.”
Senior Judge Damon J. Keith dissented, arguing that the relevant CWA provisions do not provide for jurisdiction to challenge the WOTUS rule in a circuit court, and that the National Cotton Council decision should not be read so broadly as to provide for jurisdiction here.
The underlying jurisdictional question here is interesting. As a policy matter, a facial challenge to the WOTUS rule raises precisely the sort of issue that would often be appropriate for resolution in a circuit court. The underlying question is purely legal — whether the rule comports with the CWA — and there is value to having this sort of question resolved expeditiously (and for the nation as a whole) so that there is consistent application of the CWA’s requirements throughout the country. But while that may make sense, as a policy matter, that’s not the line that the text of the CWA draws.
33 U.S.C. § 1369(b)(1) only provides for circuit court jurisdiction over a handful of types of challenges to EPA actions under the CWA. Jurisdiction over all other challenges only lies in district courts. 33 U.S.C. § 1369(b)(1)(E) and (F) only provide for judicial review in circuit courts of actions “approving or promulgating any effluent limitation or other limitation under sections 1311, 1312, 1316, or 1345″ and “issuing or denying any permit under section 1342.” As the WOTUS rule is neither of these, Judges Griffin and Keith are correct that the text of the CWA does not provide for circuit court jurisdiction over this case. Yet as Judges McKeague and Griffin note, the 6th Circuit has interpreted these provisions quite expansively and, at least under applicable circuit court precedent, there is an argument for jurisdiction.
Barring an effort to seek review of this decision — either en banc or with the Supreme Court — today’s decision means the 6th Circuit will hear the merits of the challenge to the WOTUS rule. As noted above, that could mean the WOTUS rule is in trouble, but we’ll have to see.
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