Preview Newsletter
ACC PM 2/23/16
-
(ACC Mentioned) Council Website Highlights Chemistry in Building and Construction Materials
Feb 23, 2016 | Concrete Products
By Concrete News
The American Chemistry Council (ACC) has launched www.BuildingWithChemistry.org to inform architects, specifiers, interior designers and other building and construction professionals about green building codes and standards; materials selection; and, the role of chemistry in developing innovative, sustainable solutions. -
(ACC Mentioned) Chemical Activity Barometer Slips
Feb 23, 2016 | Powder Bulk Solids
The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC), slipped 0.1 percent in February following flat performance in January and two months of revised gains in November and December 2015. -
(ACC Mentioned) Obama Optimistic on TPP, Pushes for Votes
Feb 23, 2016 | Politico Pro - Morning Trade
By Adam Behsudi
President Barack Obama says he is “cautiously optimistic” that Congress can pass the Trans-Pacific Partnership this year and touted the benefits of increased trade yesterday to the home states of Senate Finance Committee Chairman Orrin Hatch and House Speaker Nancy Pelosi, two of the biggest potential obstacles to getting the deal done this year. -
NGO Warns TTIP Could Undermine Chemicals Safety Policy
Feb 23, 2016 | Chemical Watch
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. -
US EPA Watchdog to Review Agency’s Chemical Risk Management
Feb 23, 2016 | Chemical Watch
The US EPA’s Office of Inspector General (OIG) proposes to investigate the agency’s capability to deal with the “challenges in managing chemical risks”. -
Choosing the Right Material When Developing New Products
Feb 23, 2016 | Product Design and Development
By Scott Boito
Developing new products for any market is complex. Changing regulations, both locally and globally, and consumer preferences can affect the material options for products. Therefore, cost and availability of alternatives impact product development from the start. Being aware of relevant regulations and trends early in the design process is a strategic advantage for your new product. -
OSHA’s New Whistleblower Investigations Manual Lowers Pleading Standards
Feb 23, 2016 | The National Law Review
The Occupational Safety and Health Administration (“OSHA”) just changed the way that it evaluates whistleblower retaliation complaints in a manner that should concern employers in nearly every industry. -
Federal Agencies Investigate Safety Of Crumb Rubber On Playgrounds
Feb 23, 2016 | Environmental Working Group
By Megan Boyle
Three U.S. government agencies have teamed up to investigate the safety of widely used crumb rubber surfaces on playgrounds and playing fields. -
Colo. Steps Back From Crafting Formal Plan for EPA Rule
Feb 23, 2016 | E&E Energywire
By Elizabeth Harball
Colorado officials said yesterday they believe it is "prudent" for the state to keep working toward power plant carbon emissions reductions despite a recent Supreme Court ruling to freeze a key federal climate change regulation. -
205 Lawmakers Tell Court EPA Trying to 'Usurp' Congress
Feb 23, 2016 | E&E Greenwire
By Robin Bravender and Amanda Reilly
More than 200 lawmakers are jumping into the legal brawl over the Clean Power Plan, warning that U.S. EPA is trying to "usurp" them. -
Enviros Cry Foul on 'Cursory' Offshore Fracking Study
Feb 23, 2016 | E&E Energywire
By Ellen M. Gilmer
A review of hydraulic fracturing in the Pacific Ocean did little to shed light on the oil and gas production technique's impacts, environmentalists said this week. -
Exporting Liquefied Natural Gas: A Golden Opportunity We Must Seize
Feb 23, 2016 | The Hill - Congress Blog
By Charlie Riedl
A historic milestone in America’s energy history is imminent; the U.S’s first export of liquefied natural gas (LNG). The shipment, worthy of celebration, comes in the midst of market volatility that amplifies the need for measures that would buttress the U.S. economy and keep growth – and employment – robust. -
Business Groups Slam EPA's Ozone Standard
Feb 23, 2016 | E&E Greenwire
By Sean Reilly
Industry representatives again assailed U.S. EPA's new ozone standard this morning, saying that "background" levels of the gas will leave Arizona and other Western states struggling to comply. -
Post-Ruling Path for WOTUS Challenges Clear as Mud
Feb 23, 2016 | E&E Greenwire
By Tiffany Stecker and Jeremy P. Jacobs
A federal appeals court panel's narrow ruling for keeping arguments on the Obama administration's contentious Clean Water Rule at the appellate level put to rest a lingering question on court jurisdiction -- for now.
Industry and Association News
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News - There are no clips to report at this time.
Energy and Environment News
-
(ACC Mentioned) Council Website Highlights Chemistry in Building and Construction Materials
Feb 23, 2016 | Concrete Products
By Concrete News
The American Chemistry Council (ACC) has launched www.BuildingWithChemistry.org to inform architects, specifiers, interior designers and other building and construction professionals about green building codes and standards; materials selection; and, the role of chemistry in developing innovative, sustainable solutions.
“Many of the materials and products used to build the homes, schools and office buildings where we live and work every day rely on the safety, energy savings, durability and other sustainability and performance benefits that the products of chemistry provide,” says Covestro Director of Advocacy and Sustainability Richard Skorpenske, chair of ACC’s Building and Construction Subcommittee. “We created this new website to contribute to thoughtful, informed decisions about the materials in today’s innovative, modern and sustainable building applications.”
The site includes an interactive, mixed-use residential building graphic highlighting how chemical ingredients are used in materials. Individual pages feature specific chemicals and their functionality in a range of applications. The increased popularity of green building design has given rise to a variety of approaches to guide architects, designers, materials specifiers and builders in how to build “green.” A “Green Building” section provides an overview of commonly used standards, codes, certification systems and assessment tools, as well as examples of green building approaches by building type.
In addition, a subpage on “Materials Selection” highlights different approaches specifiers, architects and designers can consider when choosing materials and products to use in building design and construction, taking into account factors such as a product’s sustainability, durability and carbon footprint. The section includes information on specific tools to help inform materials selection decisions: life cycle approaches, Environmental Product Declarations, risk assessment and multi-attribute considerations. Rounding out site features is a news page addressing energy efficiency, innovations, product safety and other timely topics. — www.americanchemistry.com
-
(ACC Mentioned) Chemical Activity Barometer Slips
Feb 23, 2016 | Powder Bulk Solids
The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC), slipped 0.1 percent in February following flat performance in January and two months of revised gains in November and December 2015.
All data is measured on a three-month moving average (3MMA). Accounting for adjustments, the CAB remains up 1.5 percent over this time last year, a decline of 50 percent from activity of one year ago when the barometer logged a 3 percent year-over-year gain from February 2014. On an unadjusted basis the CAB rose 0.1 percent following two consecutive monthly declines.
The CAB has four primary components, each consisting of a variety of indicators: 1) production; 2) equity prices; 3) product prices; and 4) inventories and other indicators.
In February, production-related indicators were mixed, reflecting some improvement in plastic resins used in packaging as well as a downturn in certain performance chemistries related to the oil and gas sector. Equity prices significantly rebounded from January, joined by a firming in product prices. Inventories were negative.
The CAB is a leading economic indicator derived from a composite index of chemical industry activity. The chemical industry has been found to consistently lead the U.S. economy's business cycle given its early position in the supply chain, and this barometer can be used to determine turning points and likely trends in the wider economy. Month-to-month movements can be volatile so a three-month moving average of the barometer is provided. This provides a more consistent and illustrative picture of national economic trends.
Applying the CAB back to 1919, it has been shown to provide a lead of two to 14 months, with an average lead of eight months at cycle peaks as determined by the National Bureau of Economic Research. The median lead was also eight months. At business cycle troughs, the CAB leads by one to seven months, with an average lead of four months. The median lead was three months. The CAB is rebased to the average lead (in months) of an average 100 in the base year (the year 2012 was used) of a reference time series. The latter is the Federal Reserve's Industrial Production Index.
The CAB comprises indicators relating to the production of chlorine and other alkalies, pigments, plastic resins, and other selected basic industrial chemicals; chemical company stock data; hours worked in chemicals; publicly sourced, chemical price information; end-use (or customer) industry sales-to-inventories; and several broader leading economic measures (building permits and new orders). Each month, ACC provides a barometer number, which reflects activity data for the current month, as well as a three-month moving average. The CAB was developed by the economics department at the American Chemistry Council. -
(ACC Mentioned) Obama Optimistic on TPP, Pushes for Votes
Feb 23, 2016 | Politico Pro - Morning Trade
By Adam Behsudi
OBAMA OPTIMISTIC ON TPP, PUSHES FOR VOTES: President Barack Obama says he is “cautiously optimistic” that Congress can pass the Trans-Pacific Partnership this year and touted the benefits of increased trade yesterday to the home states of Senate Finance Committee Chairman Orrin Hatch and House Speaker Nancy Pelosi, two of the biggest potential obstacles to getting the deal done this year.
“Governor [Gary] Herbert and I were talking about this a little bit yesterday,” Obama said at the White House in remarks to the National Governors Association, directing his initial comments on TPP to the governor of Hatch’s state. “When I visited Utah, you told me how much of Utah’s economy depends on exports and international trade. And that's true for so many of us.”
Obama acknowledged hang ups that are keeping Republican leadership from fully supporting the pact, including a tobacco provision causing heartburn in Senate Majority Leader Mitch McConnell’s home state of Kentucky. Obama said he looked forward to sending implementing legislation to Congress and pushing to round up votes for the deal.
CALIFORNIA OPPOSITION ‘INCONCEIVABLE!’: I think we should have a good healthy debate about it," Obama said. “What all of you can do to help is to talk to your congressional delegations and let them know this is really important. It is inconceivable if, for example, you are in California, that you don’t want a Trans-Pacific Partnership that ensures the gateway for commerce in the Pacific is open to California businesses and workers for decades to come. It’s inconceivable that you’d be opposed to that.”
Inconceivable or not, Pelosi and most other California Democrats voted last year against giving Obama trade promotion authority to finish the TPP. To read of Obama’s remarks, click here: http://1.usa.gov/1WF1bQV
REPUBLICAN REALITY CHECK: Despite Obama’s hopeful comments, Republican aides say they’ve seen little evidence that the administration is seriously addressing their concerns about biologics and other provisions of the agreement. One thing that might help, POLITICO Pro has been told, is for the administration to develop consistency plans to ensure countries fully implement their intellectual property commitments along the lines of what was done with Malaysia and Vietnam on the labor provisions of the deal.
Hatch, in particular, has expressed concern about the spotty record of some TPP partners, such as Chile and Canada, in fulfilling previous intellectual property commitments. The Utah Republican recently warned there were “no shortcuts” to winning approval of TPP. “We need to take the necessary time to carefully review the agreement and engage in a meaningful dialogue with the administration,” he said.
CHEMISTRY COUNCIL, FARM BUREAU LOVE TPP: On the other hand, some folks unabashedly love the mammoth 12-country agreement. American Chemistry Council President Cal Dooley sent a letter to U.S. Trade Representative Michael Froman yesterday urging “swift congressional ratification” of TPP, and new American Farm Bureau Federation President Zippy Duvall will join a call with U.S. Agriculture Secretary Tom Vilsack today to talk about the benefits of the agreement for U.S. farmers and ranchers. Read ACC’s letter here: http://politico.pro/1oyaHtO
TOO LATE FOR TTIP? U.S. and EU negotiators are huddled this week in Brussels in an effort to make progress in the long-running Transatlantic Trade and Investment Partnership. However, the uncertain outlook for congressional approval of the Trans-Pacific Partnership agreement may make EU negotiators reluctant to give the outgoing Obama administration their best offers, Phil Levy, senior fellow on the global economy at the Chicago Council on Global Affairs, argues in a new blog on Foreign Policy magazine’s website.
“The TTIP negotiations have proven highly controversial in Europe,” Levy wrote. “Thus, vigorously pursuing the agreement could come at a political cost. What would be the point for them of putting forward an ambitious proposal — and getting lambasted — if everything needs to be revisited in January anyway? As with judicial nominations, President Obama has every right to fulfill the duties of his office throughout his term. He and his team can pursue trade talks, meet with counterparts, and table his own proposals. The question is how seriously these proposals will be taken.” Read the blog here: http://atfp.co/1KEY0rH
EU TARIFF OFFER COMES WITH STRINGS ATTACHED: As TTIP talks roll on in Brussels this week, a leaked document reveals just how difficult it could be for the U.S. to negotiate meaningful market access on a broad range of important agricultural goods. In its tariff offer from October, the European Union lays out a number of conditions that have to be met before it lowers duties on 274 tariff lines primarily covering meat and dairy products.
First and foremost, the EU is asking that the U.S. offer reciprocal access on all of those goods. The EU is also demanding that negotiations on geographical indications cover products other than wine and spirits, saying the U.S. must accept protections for cheeses and other products named after European places, which, for example, would prevent U.S. sales of parmigiano-reggiano made outside that region of Italy.
The EU also wants to address several wine-specific issues, such as the easing of import duties and a prohibition on marketing any wines labeled with names like Burgundy, Chablis and Champagne unless they too originate from those EU regions. The U.S. wine industry has opposed that move, arguing those names are “semi-generic” and their use is allowed under conditions established in a 2006 wine agreement. Read the full leak here from German news outlet CORRECTIV: http://bit.ly/1T2lDNM
FIN SERV GROUPS MAKE TTIP PLEA: A group of U.S. and EU financial services organizations are urging negotiators to include “full coverage” of regulatory issues in TTIP to avoid further fragmentation between the markets.
"TTIP provides a unique opportunity to create a strong structure for regulatory dialogue that would assure that regulators focus on cross-border issues as they are developing, heading off conflicts or unnecessary differences that could be avoided,” the groups said in a statement released Monday. “A robust regulatory dialogue between the U.S. and EU, carried out under clear requirements agreed within TTIP by the respective financial supervisors, would reduce conflict and complexity and improve the efficiency of cross border regulations to the benefit of market participants and, as important, their customers and regulators.”
Financial services have been an area of contention in the talks. The U.S. so far has refused to negotiate regulatory issues on the topic, and in response, the EU has not made any market access offers. Despite the lack of progress, the two sides were expected to discuss a “prudential carve-out” provision that would allow governments to take action to protect their financial systems during economic crises after the last round of talks in October. Read the statement here: http://bit.ly/1TB9Q8V
ICYMI, TISA COUNTRIES REVISE WORK PLAN: Countries negotiating the Trade in Services Agreement quietly wrapped up their 16th round of negotiations earlier this month in Geneva, where they laid out some key deadlines for advancing the agreement this year, the European Commission said in a report on progress made during the round.
A “revised work plan” would have the 50 countries participating in the talks reach agreement by July on the content of key annexes that would establish rules in a number of service sectors. Remaining texts for the deal would be completed by September. Meanwhile, countries will work to revise their market access offers in May and again in October. Read the full report here: http://bit.ly/1KF8s2k
OBAMA’S OTHER LATAM TRIP: With all the excitement over Obama’s upcoming trip to Cuba, you might be forgiven for not noticing that he will also visit Argentina next month to meet with the country’s new reform-minded president, Mauricio Macri. The White House is describing the trip as the first “bilaterally-focused visit” by a U.S. president in nearly two decades. Former President George W. Bush visited the country in 2005 for the Summit of the Americas meeting, where efforts to craft the Free Trade Area of the Americas suffered a final defeat.
Trade and investment is on the agenda for the Obama-Macri summit, along with renewable energy and climate change and citizen security, the White House said. Argentine Secretary of Trade Miguel Braun is expected to discuss the upcoming meeting and Macri’s reform plans in a speech this morning at the Atlantic Council. He is the first high-ranking Argentine official to visit Washington since Macri’s election in October, the foreign affairs think tank said.
-
NGO Warns TTIP Could Undermine Chemicals Safety Policy
Feb 23, 2016 | Chemical Watch
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; and
prevent 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.
-
US EPA Watchdog to Review Agency’s Chemical Risk Management
Feb 23, 2016 | Chemical Watch
The US EPA’s Office of Inspector General (OIG) proposes to investigate the agency’s capability to deal with the “challenges in managing chemical risks”.
Its authority under the Toxic Substances Control Act (TSCA) “limits the EPA’s effectiveness”, said the agency's watchdog in a report. “Chemicals manufactured before 1976 were not required to develop and produce data on toxicity and exposure, which are needed to properly and full assess potential risks,” it said.
More than 80,000 chemicals are currently listed, or registered for use, under authority granted by the agency, and a thousand more are introduced every year.
In June, the OIG will start a review to “assess critical questions, regarding the EPA’s investment to address this management challenge”, the report said, listing the office's priorities for FY 2016.
The review will also look at the agency’s effectiveness in incorporating tools, like dashboards and ToxCast, in meeting its ”priority setting, toxicity testing and risk assessment needs”.
The OIG is also investigating whether an antimicrobial testing programme ensures the efficacy of EPA registered hospital sterilants, disinfectants and tuberculocides.
-
Choosing the Right Material When Developing New Products
Feb 23, 2016 | Product Design and Development
By Scott Boito
Developing new products for any market is complex. Changing regulations, both locally and globally, and consumer preferences can affect the material options for products. Therefore, cost and availability of alternatives impact product development from the start. Being aware of relevant regulations and trends early in the design process is a strategic advantage for your new product.
Getting started
One of the first steps of your project should be a quick scan of the latest regulations in your country and those of the countries where your new product will likely be sold. Specifically, look for regulations and restrictions relating to the market and the materials you’re considering. In the last 10 years, there have been many regulation changes, and there have been a few reasons for that.
By now, almost everyone has heard about the European Union (EU) regulation called Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). Some may have already experienced its effects firsthand.
Implemented in 2007, REACH helps improve the protection of human health and the environment from the risks that can be posed by chemicals. The regulation applies to all chemical substances, and it places the burden of proof for safety on companies that produce or use chemicals. To comply, companies must identify and manage the risks linked to the substances they manufacture and market in the EU.
The European chemicals regulation has dramatically shifted the conversation on substances of very high concern (SVHC) in the eight short years the regulation has been in force. As of November 2015, the SVHC list includes 163 chemicals, and several of those chemicals have started the authorization process for restricting further use.
The European Chemicals Agency (ECHA) has stated in their SVHC Roadmap to 2020 Implementation Plan document that the number of identified SVHCs will increase dramatically in the coming five years, further accelerating the speed with which such chemicals are identified.
Several industries, such as building and construction, automotive, and consumer goods, heed SVHC listings and demand that suppliers phase out listed chemicals from their products. This communication up and down the supply chain marks REACH as a new, deeper-reaching regulatory scheme, and one that product designers and developers need to monitor closely.
Closer to home
Of course, REACH is not alone in identifying chemicals of concern. California’s Proposition 65 has been responsible for identifying almost 900 chemicals of concern since 1988. The Proposition 65 list of chemicals is used by multiple entities as a base for their own restricted lists, collectively known as “red lists”.
Oftentimes, a Proposition 65 listing compels reformulation to remove the listed chemical from products to avoid labeling. The main difference between REACH and Proposition 65 is that Proposition 65 only requires products containing a listed chemical to carry a label, while REACH aims to ultimately remove SVHCs from commerce (using the Authorization process). Regardless, both regulations have had dramatic effects on how multiple industries specify acceptable materials.
In the United States, the Toxic Substances Control Act (TSCA) is the law of the land for chemicals regulation on a national level. TSCA was implemented in 1976 and has not been updated significantly since then. There is a large movement currently afoot to implement a complete revamp of the regulation, and both houses of Congress are discussing those changes now. Stay tuned for how TSCA reform efforts might affect your product development efforts.
NGO work
Beyond regulations, activities of non-governmental organizations (NGOs) are portraying some chemicals as too dangerous for human health or the environment. Often, these NGOs will have an interest in a specific market such as children’s toys or building materials, or covering specific exposures to chemicals such as in workers, children or waterways.
NGO actions are frequently picked up in the blogosphere and sometimes popular media, and can be far-reaching. This was seen in mid-2015 with the Safer Chemicals, Healthy Families report on phthalates in flooring. That report led to Home Depot, Lowe’s, Menards, and Lumber Liquidators agreeing to only sell phthalate-free flooring by the end of 2015.
Another emerging trend is that of brand owners creating their own red lists of substances they restrict or ban from their products. A few examples are Nike, Ford and the like-minded Zero Discharge of Hazardous Chemicals group, which incorporates the thinking of many brand owners and retailers. Thus, design and development projects must consider regulations and popular culture from the start to reduce risks.
Frequently referenced chemicals of concern
One extremely versatile material used for products ranging from water pipes and window profiles to flexible medical devices, toys, flooring and tool handle grips is polyvinyl chloride (PVC), also known simply as vinyl. If flexible PVC is one possible material of choice for your product or products, recent years may have proved challenging due to phthalates coming under fire. Phthalates are used as plasticizers in PVC products to give flexibility and durability.
Currently, several members of this chemical family appear on the REACH SVHC and Proposition 65 lists, including all of the highest-volume phthalates used in PVC applications. In fact, the REACH SVHC list includes 13 phthalates. Fortunately, there is good news if PVC makes sense for your product. Several alternative general-purpose plasticizers are available in the market with similar properties, but none of the toxicity issues associated with phthalates.
The highest-volume alternative is diethylhexyl terephthalate (DEHT), also known as dioctyl terephthalate (DOTP). DEHT is manufactured globally, and it has chemical properties similar to di-ethylhexyl phthalate (DEHP) and diisononyl phthalate (DINP), two of the targeted phthalates and the highest-volume plasticizers in the world. DEHT can be used in most flexible PVC applications.
In Europe, 1,2-Cyclohexane dicarboxylic acid diisononyl ester (DINCH) is available in significant quantities, and, similar to DEHT, it can be used in most PVC applications. BASF sells under the Hexamoll DINCH trade name, while Evonik sells under the Elatur CH trade name.
Of course, several bio-based alternatives are now available, including Grindsted Soft-n-Safe, Drapex Alpha 200, Pevalen and several others introduced in the last few years.
Looking past PVC
Outside of PVC, there has been focus on bisphenol A (BPA) and its close relative bisphenol S (BPS). These are mainly used to manufacture polycarbonate-based products and the epoxy linings of cans for foods. Apparently there are little or no alternatives for these substances for use in epoxy resins for canned foods.
For plastic containers, however, there are alternative materials to polycarbonate, such as Eastman Tritan copolyester — a material that is not manufactured with bisphenols — as well as other clear plastics. Although BPA and BPS are not identified as SVHCs under REACH, BPA is on the Proposition 65 list. In addition, there is intense focus on these chemicals, especially by NGOs, so the risks associated with using either one in your design must be calculated in the risk analysis for your product.
Product designers and developers need to be aware of regulations and related pop-culture activities when selecting materials. Although Europe’s REACH and California’s Proposition 65 are important regulations to consider with product development, they are only part of the consideration when selecting materials.
Awareness of the NGO and brand-owner communities also is essential in avoiding emerging substances of concern. Knowing about the extant and emerging concerns will reduce risks associated with your new product’s longevity and can provide your company with a strategic advantage in the marketplace.
-
OSHA’s New Whistleblower Investigations Manual Lowers Pleading Standards
Feb 23, 2016 | The National Law Review
The Occupational Safety and Health Administration (“OSHA”) just changed the way that it evaluates whistleblower retaliation complaints in a manner that should concern employers in nearly every industry. This is important because OSHA is not merely responsible for enforcing the whistleblower protections set forth in the Occupational Safety and Health Act of 1970 (“OSH Act”). In the years since the OSH Act was passed, Congress has expanded OSHA’s whistleblower authority to protect workers from retaliation under 22 federal statutes, including the Sarbanes-Oxley Act (“SOX”), the Affordable Care Act, and the Clean Air Act.[1]
OSHA recently issued a revised Whistleblower Investigations Manual (“Manual”), effective on January 28, 2016, that is intended for use by the agency’s whistleblower investigators in determining whether a retaliation case should be pursued or dismissed. The Manual replaces whistleblower guidance that OSHA published in May 2015 and includes two changes that significantly affect important aspects of the investigation process. One change favors whistleblowers; the other favors employer concerns.
Positive Change for Whistleblowers
Under the May 2015 guidance, after examining evidence offered by both sides, the investigator was instructed to dismiss the complaint unless the whistleblower could establish the elements of a prima facie allegation of retaliation. Taking SOX as an example, a complainant is required to prove by a preponderance of the evidence that he or she (i) engaged in conduct protected by SOX, (ii) the employer took an unfavorable personnel action against him or her, and (iii) the protected activity was a contributing factor in the adverse personnel action. “A complaint of alleged violation shall be dismissed unless the complainant has made a prima facie showing that protected behavior or conduct was a contributing factor in the unfavorable personnel action alleged in the complaint.”[2] If an alleged whistleblower meets this prima facie burden, the burden shifts to the employer to establish by clear and convincing evidence, as an affirmative defense, that it would have taken the same adverse personnel action regardless of any alleged protected activity. Thus, even if the whistleblower could establish a prima facie case, the complaint would still be dismissed if the employer demonstrated by clear and convincing evidence the elements of the affirmative defense.
The Manual eliminates the prima facie standard for determining whether a merit finding should be made, reducing the possibility that a complaint will be promptly dismissed. The new standard that applies to whistleblower retaliation investigations is whether “OSHA has reasonable cause to believe a violation occurred.” Specifically, OSHA need only “find reasonable cause that a complaint has merit” by evaluating “evidence provided by both sides or otherwise gathered during the investigation.”
Notably, investigators are instructed that the new standard does not require as much evidence as would be required at trial: “The evidence does not need to establish conclusively that a violation did occur.” They need only be convinced that a judge could find retaliation. Investigators are expected to make some credibility determinations to evaluate whether a reasonable judge could find in the whistleblower’s favor, but they are not required to resolve all possible conflicts in the evidence or even make conclusive credibility determinations to find reasonable cause that a violation occurred. Investigators need only believe, after considering all the evidence gathered during the investigation, that the whistleblower could succeed in proving a violation.
This subjective standard, and the elimination of the employer’s ability to avoid a merit finding by providing clear and convincing evidence that the alleged retaliatory act would have taken place without the whistleblower’s protected activity, seems to have tipped the balance in the whistleblower’s favor and placed employers in a precarious situation—unable to determine with any degree of certainty their chances of prevailing in any whistleblower case. The new standard will also very likely increase the number of cases that are scheduled for hearings before an administrative law judge, at the request of either the employer that receives a reasonable cause finding or an employee who does not. This uncertainty may result in more employers agreeing to participate in OSHA’s early resolution option, which encourages the investigator to explore with both parties whether they would like to attempt to settle the whistleblower retaliation complaint. The resolution option can take place at any point after a whistleblower complaint has been filed, including before an investigation begins.
Positive Change for Employers
OSHA modified the manner in which information is exchanged between the parties. Under the May 2015 guidance, employers and whistleblowers were required to provide to each other every document that they gave to OSHA. Sensitive to the alarming increase in workplace violence incidents, the Manual allows investigators to provide a summary of the information supplied by the employer to the whistleblower in instances where sharing the actual documents could inflame or incite unstable complainants.
This guidance is quite new, and OSHA may, as it tends to do, provide additional guidance documents at a later time to aid investigators and provide more clarity to the regulated community.
What Employers Should Do Now
Remember that it is essential to maintain documentation of all disciplinary actions and employee performance issues.
Recommit yourselves to ensuring that disciplinary policies and performance expectations have been clearly conveyed to employees and applied to all employees consistently.
Train managers on both how to recognize potential whistleblower claims under the statutes most relevant to your industry, and how to effectively manage a current employee who has raised a claim to minimize the possibility of retaliation.
In appropriate cases, request that an OSHA investigator share a summary rather than the actual documents with someone who has filed a charge. Although the decision to provide a summary remains at the discretion of the investigator, he or she may not appreciate the situation unless you raise the issue and advocate for this method of information sharing.
[1] OSHA also enforces the whistleblower protection provisions of the Asbestos Hazard Emergency Response Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Consumer Financial Protection Act of 2010; the Consumer Product Safety Improvement Act; the Energy Reorganization Act; the FDA Food Safety Modernization Act; the Federal Railroad Safety Act; the Federal Water Pollution Control Act; the International Safe Container Act; the Moving Ahead for Progress in the 21st Century Act; the National Transit Systems Security Act; the Pipeline Safety Improvement Act; the Safe Drinking Water Act; the Seaman’s Protection Act; the Solid Waste Disposal Act; the Surface Transportation Assistance Act; the Toxic Substances Control Act; and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
-
Federal Agencies Investigate Safety Of Crumb Rubber On Playgrounds
Feb 23, 2016 | Environmental Working Group
By Megan Boyle
Three U.S. government agencies have teamed up to investigate the safety of widely used crumb rubber surfaces on playgrounds and playing fields.
To date, safety studies of crumb rubber – tiny “crumbs” of old tires that stabilize and cushion artificial turf – have been limited and inconclusive. Now the Environmental Protection Agency, Centers for Disease Control and Prevention and Consumer Product Safety Commission have agreed on a research action plan to begin filling the gaps in knowledge about how crumb rubber affects children and athletes who play on these surfaces.
The announcement follows calls by Sens. Bill Nelson (D-Fla.) and Richard Blumenthal (D-Conn.) for a coordinated federal investigation. You can read their open letters to the White House and Consumer Product Safety Commission. California’s Office of Environmental Health Hazard Assessment is also evaluating crumb rubber, with support from the federal Consumer Product Safety Commission.
For years, parents and scientists have been sounding the alarm about turf safety. As of the end of 2014, synthetic turf covered almost 11,000 playing surfaces in North America – at schools, professional sports arenas, businesses, homes and public spaces. Just last week, the Children’s Environmental Health Center of the Icahn School of Medicine at Mount Sinai in New York called for a moratorium on installing crumb rubber until more is known about how it affects health.
There are several worrisome issues. Crumb rubber contains a variety of chemicals – including heavy metals, PCBs and other volatile compounds – that can all be inhaled. In June 2015, the Environment and Human Health Inc. a non-profit, released a study done at Yale University that detected 96 different chemicals in rubber tire infill, including 12 known carcinogens and 20 irritants. Here’s a list from the EPA of other possible ingredients in the material.
When kids and athletes play, fall or eat on artificial turf playgrounds or fields, they can get crumbs on their hands, in their hair, on their clothes and even in their mouths. And synthetic turf can reach alarming temperatures – as much as 200 degrees Fahrenheit on a 98-degree day, according to another non-profit, the Center for Environmental Health.
Parents and athletes also worry about the risks of injuries such as concussions and the easy spread of bacteria through rashes, cuts and turf burns, which may be linked to infections with the dangerous bacteria known as MRSA (methicillin-resistant Staphylococcus aureus). The journal Environmental Health Perspectives published this useful summary of the health issues in question.
Some municipal agencies have already prohibited the use of crumb rubber in synthetic turf, including the Los Angeles Unified School District and the New York City Parks Department. Others are using alternative materials, such as cork or sand. These natural substances offer many of the benefits of synthetic turf without the potential risks.
While the research into crumb rubber continues, here are a few steps parents can take to keep their children safe.
Learn more about where your kids play
The Safe Healthy Playing Fields Coalition offers this list of questions to ask your school or community about synthetic turf, particularly regarding turf maintenance. The Center for Environmental Health will test your turf for lead at no charge. Here’s how.
Wash after playing
Children and athletes should wash their hands after playing outside and before eating, and they should change clothes immediately after play. They should wear long sleeves or pants when possible to limit abrasions and clean all cuts, burns or rashes thoroughly.
Play outdoors or on well-ventilated fields
Limit playtime on indoor fields to lower the inhalation risk – but be alert to high temperatures outdoors. You may see signs near fields that warn of heat danger. Here are some examples to look for. Exercise caution whenever the outside temperature is above 80 degrees.
-
Colo. Steps Back From Crafting Formal Plan for EPA Rule
Feb 23, 2016 | E&E Energywire
By Elizabeth Harball
Colorado officials said yesterday they believe it is "prudent" for the state to keep working toward power plant carbon emissions reductions despite a recent Supreme Court ruling to freeze a key federal climate change regulation.
But the state's original path toward meeting U.S. EPA's Clean Power Plan goals will be recharted, officials declared at Colorado's first public meeting about the regulation since the court stay.
"We don't think it is appropriate at this point to continue drafting a full state plan," said Chris Colclasure of the Colorado Department of Public Health and Environment's Air Pollution Control Division. "There's just too much uncertainty for that."
Under the Clean Plan, EPA had asked Colorado to cut its rate of emissions 38 percent from 2012 levels by 2030. The rule required states to develop detailed strategies by September 2018 demonstrating how they would meet the required power sector carbon reductions.
Colclasure said the decision to stop work on developing a full compliance plan is part of an effort in smart time management.
"We want to take any steps that we can to put Colorado in the best position given the uncertainty so that when the Supreme Court gives us a ruling, we have used that time effectively," he said.
The state is "trying to identify actions that we can take that will have benefits regardless of the outcome of the litigation," Colclasure said, adding that "we don't want to waste time, either, by having people work on activities that wind up being irrelevant."
Colorado will continue modeling potential carbon emissions-reduction scenarios and looking at the role of energy efficiency in the state, according to Will Allison, director of the Air Pollution Control Division at CDPHE.
Public meetings in limbo
The agency will also continue meeting with power companies, environmental groups and communities about the rule and its implications, including discussions on how allowances might be allocated under a potential carbon trading system.
"We want to continue the dialogue that we've got going," said Colclasure.
However, the state is considering cancelling a public meeting on the rule scheduled for March in Pueblo, Colo. According to the CDPHE website, the meeting was to focus on "trading, allowances, set asides, emission reduction credits, and other mechanisms needed to comply."
A meeting scheduled for April in Craig, Colo., is likely to remain on schedule, Colclasure said.
Colorado Attorney General Cynthia Coffman (R) is part of the multi-state legal challenge of the Clean Power Plan, while Gov. John Hickenlooper (D) supports EPA's rule. Shortly after the Supreme Court stay was announced, the CDPHE announced it will keep planning for EPA's rule "to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan."
Representatives for a number of clean energy, environmental and public health groups spoke in support of the Hickenlooper administration's stance on the Clean Power Plan at yesterday's meeting, including the American Lung Association, Conservation Colorado and the Western Clean Energy Campaign.
But others protested the agency's intention to continue discussions about the Clean Power Plan.
"This is a waste of the department's time and taxpayer's money," said Richard Orf, a government relations representative for the Colorado Mining Association.
Orf noted that nearby states like Montana, Utah, North Dakota and South Dakota are halting planning under the rule. So far, 20 states have announced they will continue planning for the rule, 18 states are suspending planning for the rule and nine states are still assessing what to do following the Supreme Court stay of the Clean Power Plan (ClimateWire, Feb. 22).
"If Colorado chooses to move ahead on its own, there is no assurance that the state's plan will ultimately mesh with whatever course EPA may choose," Orf said.
-
205 Lawmakers Tell Court EPA Trying to 'Usurp' Congress
Feb 23, 2016 | E&E Greenwire
By Robin Bravender and Amanda Reilly
More than 200 lawmakers are jumping into the legal brawl over the Clean Power Plan, warning that U.S. EPA is trying to "usurp" them.
Led by Senate Majority Leader Mitch McConnell (R-Ky.), 34 senators and 171 representatives today filed a friend-of-the-court brief supporting the throngs of states and industry groups looking to topple the Obama administration's rule to slash power plants' greenhouse gas emissions. The lawmakers are all Republicans with the exception of West Virginia Democratic Sen. Joe Manchin.
With its rule, the multitude of lawmakers told federal judges, EPA "is seeking to usurp the role of Congress to establish climate and energy policy for the nation."
The brief filed with the U.S. Court of Appeals for the District of Columbia Circuit was also signed by Senate Environment and Public Works Chairman James Inhofe (R-Okla.), House Energy and Commerce Chairman Fred Upton (R-Mich.) and many others.
The lawmakers laid out several arguments as to why they believe the rule is unlawful.
First, they contend that EPA is illegally attempting to regulate power plants under two separate sections of the Clean Air Act despite language in the law aimed at preventing "duplicative regulation."
Furthermore, "contrary to the policy choices made by Congress," the lawmakers said, EPA's Clean Power Plan "seeks to transform the nation's electricity sector" by setting carbon dioxide emission reduction mandates for the states. "Congress never authorized EPA to compel the kind of massive shift in electricity generation effectively mandated in the final rule," they wrote.
Had lawmakers meant to give EPA such "sweeping authority," they went on, "Congress would have provided for that unprecedented power in detailed legislation."
The multitude of challenges against EPA's rule have been consolidated into one lawsuit that's now working its way through the D.C. Circuit, with oral arguments slated for early June and a decision expected later this year. The Clean Power Plan is on hold after the Supreme Court agreed earlier this month to freeze the regulation while the legal battle plays out in the D.C. Circuit.
The GOP lawmakers are urging the D.C. Circuit to vacate the rule in its entirety. With their brief, the lawmakers said they could provide the judges with "new and additional insights for the benefit of the court" as it weighs the case.
The lawmakers' foray into the court battle comes after congressional attempts to kill the rule have failed.
Under McConnell's leadership, the Senate has attempted to advance several measures aimed at scuttling the Obama administration's climate agenda. Last year, Congress sent President Obama two resolutions under the Congressional Review Act that would have killed EPA's carbon rules for power plants.
Notably, three Republican senators -- Sens. Kelly Ayotte of New Hampshire, Mark Kirk of Illinois and Susan Collins of Maine -- voted against those resolutions. The trio, all moderates, did not sign on to today's friend-of-the-court brief. Kirk and Ayotte are facing tough re-election battles this fall.
A group of moderate House Republicans led by Rep. Chris Gibson (R-N.Y.) that last year introduced a resolution to address climate change is also missing from the court document. That resolution currently has 12 co-sponsors.
-
Enviros Cry Foul on 'Cursory' Offshore Fracking Study
Feb 23, 2016 | E&E Energywire
By Ellen M. Gilmer
A review of hydraulic fracturing in the Pacific Ocean did little to shed light on the oil and gas production technique's impacts, environmentalists said this week.
The Department of the Interior yesterday published a hard-fought draft environmental assessment that considers the impacts of fracking, acidizing and other well stimulation methods used off the coast of California. The review comes as part of a settlement with two environmental groups who filed separate lawsuits in 2014 and 2015 challenging the agency's routine permitting of offshore fracking.
But the groups now say the assessment is merely "cursory" and still fails to take the "hard look" required by the National Environmental Policy Act.
"The Interior Department is blowing off its legal responsibility to carefully consider the risks and harms of offshore fracking," Center for Biological Diversity attorney Kristen Monsell said in a statement. "Instead of protecting California's wildlife and coastal communities from fracking chemicals and oil spill risk, federal officials seem keen to resume rubber-stamping this toxic technique as quickly as possible."
CBD sued Interior last year, arguing that the agency's Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement should perform new environmental studies that focus on the specific impacts of fracking in the Pacific. The California-based Environmental Defense Center filed a similar lawsuit in late 2014 claiming Interior was "rubber-stamping" drilling permits for fracking and acidizing in the Santa Barbara Channel.
In a settlement in January, Interior agreed to freeze permitting for offshore well stimulation while it performed a new environmental assessment (EnergyWire, Feb. 1). The study's release was announced yesterday in the Federal Register.
The assessment, prepared by Argonne National Laboratory, considers the effects of offshore fracking on air quality, water quality, and marine and coastal wildlife, and analyzes the likelihood of accidents during well stimulation and fluid handling. The report lays out four options: permitting well stimulation on a case-by-case basis, as Interior has previously done; permitting well stimulation only at certain depths; permitting well stimulation but banning open-water fluid discharges; and prohibiting well stimulation on existing leases.
Interior is backing the first option, preferring to continue with traditional permitting for offshore well stimulation. The report notes that the option would have no noticeable air quality impacts, a "negligible" effect on greenhouse gas emissions, "slight" reductions in local water quality at the site of discharges, a low potential for earthquakes and "subtle toxic effects" on some animals within the discharge zone.
EDC attorney Brian Segee said the draft assessment fails to adequately consider information gaps that would shed more light on offshore fracking's environmental impacts.
"Even though the agencies acknowledge that there are significant information gaps with respect to the use of offshore fracking and acidizing, including the potential impacts of frac fluids and other chemicals," he said in an email, "over and over again the [environmental assessment] concludes that there will be no impacts because the pollution will be diluted in coastal waters."
The report adds that a ban on fracking and other stimulation on existing leases could actually lead to greater cumulative environmental impacts because more onshore or offshore wells or imports would be needed to meet demand.
"Implementation of Alternative 4 may necessitate the drilling and production of new wells offshore and/or onshore, increase [well stimulation technology] use at onshore wells, and/or increase the need to import more gas and oil," the report says. "These would all increase environmental and societal cumulative impacts."
Monsell criticized the rationale as further evidence of fracking's negative impacts and argued that the Obama administration should favor policies that shorten the lifespan of offshore wells and encourage renewables.
"The federal government is proposing to allow offshore fracking because prohibiting it could lead to more fracking on land, which would increase negative environmental and societal impacts," she said in an email. "But that just shows that fracking is dangerous no matter where it occurs -- this toxic technique doesn't belong in the ocean or on land.
And Segee wrote that the agencies' logic is based on the "flawed belief" that its mandate is to promote offshore drilling.
"The Draft [study] is unfortunately fundamentally flawed from the first page, as BOEM and BSEE incorrectly describe the purpose of the analysis as allowing the use of offshore fracking and acidizing, rather than determining whether these dangerous technologies can be safely used off California's irreplaceable coastline," he said. "Given the agencies' flawed belief that their job is to promote offshore oil drilling, it is not surprising that they conclude there will be no environmental impacts and go so far as to conclude, perversely, that not conducting offshore well stimulation will have greater environmental impact."
The assessment is subject to a 30-day comment period ending March 23.
-
Exporting Liquefied Natural Gas: A Golden Opportunity We Must Seize
Feb 23, 2016 | The Hill - Congress Blog
By Charlie Riedl
A historic milestone in America’s energy history is imminent; the U.S’s first export of liquefied natural gas (LNG). The shipment, worthy of celebration, comes in the midst of market volatility that amplifies the need for measures that would buttress the U.S. economy and keep growth – and employment – robust. Increasing the export of U.S. LNG will do just that, in addition to making our manufacturing base stronger, the environment cleaner, and our world safer.
LNG exports will drive economic growth by creating jobs, encouraging production, and stimulating investment, according to a substantial body of research that includes studies from Brookings Institution, Small Business & Entrepreneurship Council, Deloitte, and ICF International.
Most recently, the Department of Energy’s own macroeconomic analysis, released in October of 2015, found that expanded export scenarios would add between $7.7 billion and $20.5 billion to the economy and between 9,600 and 35,200 jobs, to the U.S. workforce every year from 2026 to 2040. The study concluded that economic benefits would increase with the level of exports: The more we export, the better off our economy will be.
U.S. manufacturers such as Caterpillar and theNational Association of Manufacturers agree that LNG exports will support the domestic manufacturing resurgence and help bring jobs back to the U.S. Expanded LNG export scenarios will also increase demand for equipment and machinery and, in turn, for products like steel, a raw material for drill pipes, and cement, a key component of well construction. As DOE’s study found, “Firms that supply the natural gas sector and are involved in developing the infrastructure and supply chains needed to increase production and LNG exports benefit. This includes firms in the construction and engineering sectors.”
Not only will exporting LNG make the economy stronger, it will also make the global environment cleaner. A recent Pace study, commissioned by the Center for Liquefied Natural Gas, found that if Germany, Japan, South Korea, China, and India produced electricity from coal instead of U.S.-sourced LNG, their emissions from power generation would be 92 to 194 percent higher. Making LNG available for other countries to use will reduce emissions around the world and affecting a meaningful difference in the global effort to fight climate change.
Currently there are 28 applications awaiting approval from the DOE to export natural gas, with an average approval time of 115 days. While it is encouraging that the House has already passed H.R. 8, the North American Energy Security and Infrastructure Act, aimed at streamlining the approval process to 45 days from up to 220 currently, the Senate is yet to vote on the issue.
Doing so and creating a legislative solution will ensure that that project applications are processed and reviewed in a consistent and timely manner, helping to unlock billions of dollars of investment into our domestic economy, which is currently sidelined.
So, while today’s milestone is an important and significant one, it should also only be the first of many more to come. Exporting LNG is a golden and unique opportunity, but it is one that we must grasp quickly if we are to take full advantage of the manifest economic, environmental and geopolitical benefits it offers.
Riedl is the new executive director of the Center for Liquefied Natural Gas.
-
Business Groups Slam EPA's Ozone Standard
Feb 23, 2016 | E&E Greenwire
By Sean Reilly
Industry representatives again assailed U.S. EPA's new ozone standard this morning, saying that "background" levels of the gas will leave Arizona and other Western states struggling to comply.
"Clearly, Western states are losers here, and obviously businesses operating in those states are hit hard," Ray Keating, chief economist for the Center for Regulatory Solutions, told reporters in a conference call.
"We cannot reduce what we cannot control, but that is what the law is requiring of us," said Ross Eisenberg, vice president of energy and resources policy at the National Association of Manufacturers.
Before beginning the compliance process with the new 70 parts per billion standard set last October, Eisenberg said, EPA should finish the job of bringing all states into compliance with the previous 75 ppb threshold dating back to 2008.
The call was timed in advance of a two-day EPA workshop on background ozone issues scheduled to begin tomorrow in Phoenix (E&ENews PM, Feb. 22). In a white paper posted online in late December, the agency acknowledged that background ozone can substantially affect monitoring results in the Intermountain West but said there is no indication that background ozone will interfere with attainment of the new 70 ppb benchmark.
But in a rebuttal also released today, the Center for Regulatory Solutions, an offshoot of the Small Business and Entrepreneurship Council, said EPA officials left out "relevant studies" suggesting that background ozone poses "a much bigger problem for Western states" and that the science in any case is not well understood.
"The white paper repeatedly references modeling uncertainties and unknown variables," the rebuttal says.
Ozone, the prime ingredient in smog, is a lung irritant that can worsen conditions like asthma and emphysema. Background ozone is typically defined as coming from sources -- such as stratospheric intrusions and wildfires -- outside of immediate local control.
In opting to lower the standard, EPA cited new scientific evidence of ozone's health effects and the agency's statutory responsibility to protect public health. That decision is now under a double-barreled attack before the U.S. Court of Appeals for the District of Columbia Circuit. NAM and other business groups argue that the benchmark should have been left at 75 ppb; environmentalists contend that EPA should have lowered it to 60 ppb.
EPA plans to designate areas as in attainment and nonattainment with the new standard late next year.
-
Post-Ruling Path for WOTUS Challenges Clear as Mud
Feb 23, 2016 | E&E Greenwire
By Tiffany Stecker and Jeremy P. Jacobs
A federal appeals court panel's narrow ruling for keeping arguments on the Obama administration's contentious Clean Water Rule at the appellate level put to rest a lingering question on court jurisdiction -- for now.
The 6th U.S. Circuit Court of Appeals in Cincinnati issued a 2-1 decision yesterday to proceed with challenges in appeals court, and not in district courts spread around the country (Greenwire, Feb. 22).
The three-judge panel split in an odd way, with Judge David McKeague, a Republican appointee, siding with the government based in part on its arguments.
Judge Richard Griffin, another Republican appointee, disagreed with U.S. EPA's and the Army Corps' intentions but said he was bound to back McKeague's judgment by the 6th Circuit's 2009 ruling in National Cotton Council v. EPA, a case concerning permitting for spraying pesticides.
"Were it not for National Cotton, I would grant the motions to dismiss," Griffin wrote, referring to the challengers' motions to move the case out of the appeals court and back down to district courts.
And the third judge, Damon Keith, a Democratic appointee, disagreed with both judges. He said that he would rule against the government and that National Cotton was not a controlling precedent for the jurisdiction issue presented in the current case.
Attorneys cautioned that this may not be the final word on the jurisdiction question at the 6th Circuit.
Peter Prows, a San Francisco attorney specializing in the Clean Water Act, said that split could make it more likely that the challengers will ask the 6th Circuit to review the case en banc, meaning before a larger panel of judges.
"The panel felt constrained by an earlier 6th Circuit case that two of the judges thought was wrongly decided," said Prows, who works at the firm Briscoe Ivester & Bazel.
It typically takes an en banc panel to overturn or clarify a circuit precedent. So the judges voicing their concerns about the holding in National Cotton "potentially sets this up for an en banc panel to come out the other way and send the cases back to the district courts."
Challengers would need to petition the court within 14 days of the decision for an en banc review.
Observers are also watching the 11th U.S. Circuit Court of Appeals in Atlanta for a reaction to yesterday's decision. The court was set to hear arguments today on the same narrow question as the 6th Circuit but canceled the hearing last week pending the Cincinnati appeals court's decision. An en banc review might delay the 11th Circuit's moves.
State, industry and agriculture interests have filed challenges to the EPA-Army Corps jurisdictional rule, better known as the Waters of the U.S. rule, or WOTUS, in several district courts scattered across the United States.
These petitioners argue that these cases should be considered by local district courts first.
The rule, finalized last year, seeks to define which streams and wetlands receive automatic protection under the Clean Water Act.
The 6th Circuit placed the rule on hold last fall pending a decision on legal jurisdiction. That stay remains in place, according to yesterday's ruling.
The decision marks a procedural win for the Obama administration. Department of Justice attorneys asked the panel in oral arguments to keep the challenges at the appeals court level, given the broad applicability of the water rule across the United States.
Legal experts differ on how the ruling will affect cases on the ground, particularly for a North Dakota district court challenge to the regulation.
Most of the challenges to the Clean Water Rule filed in district court have been thrown out or placed on hold. Only one judge, U.S. District Court Chief Judge Ralph Erickson for the District of North Dakota, is proceeding with the case regardless of the appeals court's ruling.
North Dakota Attorney General Wayne Stenehjem (R) is reviewing the case, spokeswoman Liz Brocker said.
Pat Parenteau, a professor at Vermont Law School, says the case will likely be dismissed in light of the 6th Circuit decision.
"There's no jurisdiction in the district court," said Parenteau, adding that a district court route would only be appropriate if there were no other "adequate remedy in a court" under the Administrative Procedure Act.
But Larry Liebesman, a senior adviser at consulting firm Dawson and Associates, disagrees, saying the 6th Circuit decision only affects district courts in four states: Kentucky, Michigan, Ohio and Tennessee.
"As of right now, there's nothing here that would block them from proceeding ahead," Liebesman said of the North Dakota case.
Industry and Association News
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News - There are no clips to report at this time.
Energy and Environment News
Add recipients
Suggested