Preview Newsletter
PM ACC 3/2/2016
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(ACC Mentioned) Economic Importance of Rare Earth Metals to Drive Global Rare Earth Metals Market: TMR
Mar 2, 2016 | Your Metal News
Rare earth metals comprise a series of elements extracted from the Earth’s crust. These constitute fifteen lanthanides... -
Udall: ‘Confident’ TSCA Reform Will Be Passed This Year
Mar 2, 2016 | Chemical Watch
US Senator Tom Udall (D-New Mexico) said that he is “confident” in the passage of reform to the decades-old Toxic Substance Control Act (TSCA). -
Ten Years After State’s Ban, Big Drop in Fire Retardants in California Breast Milk
Mar 2, 2016 | Environmental Working Group
By Bill Walker
The science of biomonitoring – measuring the chemical pollution in people – produces a seemingly unbroken stream of horror stories, with study after study reporting a new toxic threat building up in our bodies. -
Consumer Pressure Credited for Removal of 37 Substances from Company Fragrance Palette
Mar 2, 2016 | Chemical Watch
By Kelly Franklin
Consumer products conglomerate, Procter & Gamble, has published on its website a list of more than 140 fragrance ingredients it does not use in its products. -
Enviro Challenge to Crude-by-Rail Rule Dismissed
Mar 2, 2016 | E&E Energywire
By Ellen M. Gilmer
A nearly yearlong legal battle over the Obama administration's new rules for crude-by-rail safety ended yesterday as a federal court dismissed a lawsuit from environmental groups. -
Crews Work to Clear NY Tracks Where 16 Freight Cars Derailed
Mar 2, 2016 | AP (In The New York Times)
Crews worked Wednesday to clear the site of a 16-car Norfolk Southern freight train derailment that forced the evacuation of dozens of western New York homes after ethanol leaked from two tankers. -
Tasking Deese with High Court Pick Could Send Climate Signal
Mar 2, 2016 | Jean Chemnick
By E&E Climatewire
The White House senior official who helped bring home a long-sought global climate deal last year now faces perhaps the tougher challenge of shepherding a Supreme Court nominee past a recalcitrant Senate. -
'Don't Sweat It' on Clean Power Plan -- McCarthy
Mar 2, 2016 | E&E Greenwire
By Christa Marshall
U.S. EPA Administrator Gina McCarthy today said the recent Supreme Court decision to stay the Clean Power Plan "in no way" signals it is not legally defensible and will not "in the end win." -
Heinzerling Fears 'Flood' of New Stay Petitions After High Court Blocks ESPS
Mar 2, 2016 | InsideEPA
By Dawn Reeves
Georgetown law professor and former EPA policy chief Lisa Heinzerling is warning that the Supreme Court's recent decision to stay the agency's power plant greenhouse gas rule during judicial review... -
Ariz. Weighing Post-Stay Options After 'Turbulent' Events
Mar 2, 2016 | E&E Climatewire
By Emily Holden
Arizona air regulators are still deciding whether to keep planning for U.S. EPA's Clean Power Plan after the death last month of Supreme Court Justice Antonin Scalia further clouded the outcome of the embattled power plant rule. -
Years of Work Remain on Tardy Toxics Reviews -- EPA Official
Mar 2, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA, already far behind in conducting legally required reviews of toxic air pollutants, will need years more to finish 20 that are now the subject of a lawsuit, a senior manager said in a recent court filing. -
Studies Finding Underestimated Mercury Cut Benefits May Boost EPA Rule
Mar 2, 2016 | InsideEPA
By Stuart Parker
Two recent studies by academics and government scientists say EPA underestimated the health benefits of reducing mercury emissions and that reductions from sources such as power plants benefit nearby residents... -
District Court Urged to Extend Stay of CWA Rule Suit
Mar 2, 2016 | InsideEPA
Agriculture and other industry groups are urging the U.S. District Court for the Northern District of Georgia's Atlanta Division to extend a stay of litigation over EPA's Clean Water Act (CWA) jurisdiction rule pending... -
Green Venture Seeks to Turn Back Clock on Carbon Emissions
Mar 2, 2016 | Wall Street Journal
By Chester Dawson
A project backed by Bill Gates and a Canadian oil baron is attempting to turn back the clock on greenhouse gas emissions by snatching carbon dioxide particles out of thin air.
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Mar 2, 2016 | Your Metal News
Rare earth metals comprise a series of elements extracted from the Earth’s crust. These constitute fifteen lanthanides (thulium, terbium, gadolinium, lutetium, holmium, promethium, erbium, cerium, ytterbium, praseodymium, dysprosium, lanthanum, europium, samarium, and neodymium), scandium, and yttrium. These elements exhibit distinct luminescent, magnetic, and electrochemical properties desirable for several modern technologies: consumer electronics, communications, and advanced transportation, to name a few.
American Researchers Discover Technique for Extraction of Rare Earth Metals from Coal Byproducts
In North America, economic output worth more than US$329 billion is dependent on rare earth elements, as per the American Chemistry Council. Even though the U.S. is the world’s second largest producer of rare earth metals at just over 6% of the global total, the U.S. economy is heavily dependent on imports of the same for ultra-modern operations and services. Nevertheless, the U.S. may soon be able to diminish imports considerably through domestic production.
At Penn State and the U.S. Department of Energy, a team of researchers have discovered a technique to extract these metals from coal byproducts, which is cost-effective as well as environmentally sustainable. Rare earth metals are found in coal seams and in proximity to other mineral veins. However, due to the high cost of their extraction and low demand for them until recently, in spite of their abundance in the U.S., their extraction was not feasible.
In coal production in the Northern Appalachian region of the U.S., byproducts of coal were treated to an ion exchange chemical process in order to extract rare earth metals in the safest manner. As ion exchange requires less energy and is not harsh on the environment as well, it may be sustainable for the production of both necessary and luxury items.
China Dominates Rare Earth Metals Market for Production and Consumption
The rare earth metals market will rise at an impressive 13% CAGR from 2012 to 2018, says Transparency Market Research. Categorized into heavy and light metal types, rare earth metals are utilized in the manufacture of a large number of everyday devices. This holds promise for the market’s progression. Despite this, concentration of reserves in select regions of the world lead to dominance of those regional rare earth metals markets.
China accounts for more than 85% of the world’s rare earth metal production, followed by the U.S., Russia, India, Australia, and others. Being the largest consumer of these metals as well, China accounts for a massive share of more than 95% in the global market for rare earth metals. The excessive dominance of China poses a challenge for producers from other countries.
Cerium oxide has the most widespread applications of all rare earth metals. In 2013, it held the largest market share of 40% in the global market. This was followed by lanthanum oxide, which accounted for a share of 23.8% in the global market. The automotive and green technology industries utilize lanthanum oxide extensively, along with moderate utilization of the same in the construction and electronics industries.
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Udall: ‘Confident’ TSCA Reform Will Be Passed This Year
Mar 2, 2016 | Chemical Watch
US Senator Tom Udall (D-New Mexico) said that he is “confident” in the passage of reform to the decades-old Toxic Substance Control Act (TSCA).
In a keynote address to attendees of the International Consumer Products Health and Safety Organization (ICPHSO) annual meeting and training symposium, the Senator said: “We are going to get this done this year, sooner rather than later, and make sure the American people have the protection they deserve.”
“Some days you might not think that we could pass a major environmental law in this Congress,” said the Senator. “But we have proven that wrong, and we have a very strong bill.”
The Senate passed a TSCA reform bill (S 697) by a unanimous voice vote in December. The House’s “TSCA Modernization Act” (HR 2576) was approved earlier in the year with broad support.
Mr Udall, who co-authored the Senate version, reported that Congress is now working to reconcile the two bills.
Discussions between House and Senate leadership began earlier this year. While their work continues, a host of NGOs, state bodies and industry groups have weighed in on the differing legislation and their priorities in a final bill.
A letter from four organisations representing state leaders called on Congress to preserve the authority of states to regulate chemicals, a sentiment which was echoed in a letter from 12 state attorneys general.
Preservation of states' rights was also listed as a priority in a letter submitted to congressional leaders, on behalf of more than 100 advocacy groups. The organisations also called for the final bill to:
set a mandatory schedule for the EPA to evaluate at least 10 substances a year, with a limit on industry-initiated assessments;prioritise action on asbestos and PBTs (persistent, bioaccumulative and toxic substances);
maintain strong “right to know” provisions, which rein in “abusive” use of confidential business information (CBI) claims;
avoid introducing cumbersome processes that will slow the EPA’s efforts to evaluate substances. This includes leaving out the Senate bill’s limitation of the EPA’s authority to use significant new use rules (Snurs); and
maximise the amount of industry fees that can be collected to fund EPA activities.
But several of the concerns with the bills, raised by the Society of Chemical Manufacturers and Affiliates (Socma), conflict with the positions taken by the advocacy groups. For instance, the trade body has said that it would oppose a final bill that includes those provisions that do not adequately protect CBI, or if it allows for collection of fees that exceed what is reasonably necessary to cover programme costs.
Despite the disagreement among stakeholders, Mr Udall has long been hopeful of a smooth reconciliationprocess.
“We have an historic opportunity to create a chemical law that works,” he said this week.
Further analysis of the House and Senate TSCA bills can be found in this month’s Global Business Briefing, in a feature by the Environmental Defence Fund’s lead senior scientist, Richard Denison.
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Ten Years After State’s Ban, Big Drop in Fire Retardants in California Breast Milk
Mar 2, 2016 | Environmental Working Group
By Bill Walker
The science of biomonitoring – measuring the chemical pollution in people – produces a seemingly unbroken stream of horror stories, with study after study reporting a new toxic threat building up in our bodies. So when a study shows declining levels of toxic chemicals in people, it’s good news – and encouraging proof that citizen action against hazardous chemicals works.
In 2002, California state scientists tested the breast milk of Bay Area women and made a shocking finding: Levels of a class of industrial chemicals that can permanently harm the nervous system and development of fetuses and infants were the highest ever measured in the world – up to 60 times higher than in European women.
The chemicals were polybrominated diphenyl ethers, or PBDEs, used as fire retardants primarily in furniture and electronics. The extremely high levels in Bay Area women were due to of California’s strict fire-resistance standards for upholstery, making the state the heaviest user of the type of PBDEs most likely to build up in people, animals and the environment.
EWG and other environmental groups launched a campaign to ban or restrict PBDEs, which studies showed were not needed for fire safety. We tested for PBDEs in fish in San Francisco Bay, in breast milk in American women nationwide and in dust from the women’s houses, each time finding dangerously high levels.
California lawmakers quickly enacted a ban on PBDEs, taking effect in 2006. A dozen other states followed suit and the U.S. Environmental Protection Agency negotiated an agreement with chemical companies to phase out most PBDEs by 2014.
California scientists who conducted a follow-up study to assess the effect of the ban last month reported that levels of PBDEs in the breast milk of Bay Area women have dropped by almost 40 percent.
“This is good news for parents and children,” Barbara Lee, director of the California Department of Toxic Substances Control, said in a news release. “It shows that by taking action on harmful chemicals in consumer products we can reduce our uptake of those chemicals and better protect public health.”
The findings show the effectiveness of the state’s Safer Consumer Products program, one of the first in the U.S. to implement the principles of so-called green chemistry.
“This is the goal of the Safer Consumer Products program, which is asking manufacturers who market their products in California to find safer alternatives for the toxic chemicals in their products,” said Meredith Williams, the program’s deputy director.
The news isn’t all good. The study found that despite the decline, babies born to all the women were exposed to some PBDEs, almost a third of them to very high concentrations of the chemicals. And in 2014 a study from EWG and Duke University found that the class of fire retardant chemicals that has replaced PBDEs, including some known to cause cancer, is building up in the bodies of mothers and their children.
The U.S. Consumer Products Safety Commission is considering a petition from scientists and advocates, including EWG, to ban this new generation of fire retardants from children’s products, furniture, mattresses and household electronics. Once again, citizens are taking action to push government regulators to do their job and protect public health.
Ultimately, the only way to prevent trading one group of bad chemicals for others that may be just as dangerous is to reform the nation’s Toxic Substances Control Act to ensure that chemicals are proven safe before they’re allowed on the market – and before they show up in people’s bodies.
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Consumer Pressure Credited for Removal of 37 Substances from Company Fragrance Palette
Mar 2, 2016 | Chemical Watch
By Kelly Franklin
Consumer products conglomerate, Procter & Gamble, has published on its website a list of more than 140 fragrance ingredients it does not use in its products.
Since 2012, the company has made public a list of substances that it uses in its fragrance formulations. But a company spokesperson said that it has “found that people are also interested in what we do not use in our fragrances”.
“This list of ingredients we do not use has been part of our fragrance evaluation process for many years, and we are now making it available to the public as well,” said the spokesperson. It has said it will update the list on an ongoing basis.
The company’s recently published list of “ingredients we do not use” includes substances that the company has never used, as well as some that it “chose to stop using and are removing from product fragrances”. The list does not distinguish between the two.
Alex Scranton, director of science and research with NGO Women’s Voices for the Earth (WVE), said that the company’s disclosure represents an “additional step in the evolution of thought around fragrance disclosure”.
WVE analysed the list of ingredients not currently used in P&G fragrances against the fragrance palette it first made public in 2012. The NGO identified 37 substances that have been moved from the 2012 fragrance palette to the “ingredients we do not use” list. It noted that this may not be an exhaustive list, if chemical names have been changed in the interim.
According to the NGO’s analysis, fragrance ingredients dropped by P&G since 2012, include: several phthalates, including DEP, DINP and DMP; styrene; cresol (mixed isomers); and musk ketone.
In recent years, the company has publicly committed to not using phthalates in its products. Its published policy on the substances says that the company only used DEP, but has worked to remove it from formulations because "DEP can get mistakenly linked to other phthalates in the public discussion because of its name".
Ms Scranton says that several of the substances that have been removed from the company’s fragrance palette have been the subject of pressure from NGOs and consumers, since the company published its ingredients.
This progress “really shows the effect of transparency”, she says.
But Ms Scranton says that there are “a lot of questions about the chemicals that still remain” on the company's fragrance ingredient list. She adds that many consumers continue to seek product-specific disclosure, as P&G competitor SC Johnson has recently begun to do for some product lines.
P&G did not indicate if the company plans to disclose fragrance ingredients on a product-specific basis. But it will “follow up with those, who may have specific questions about a fragrance ingredient in a particular product”, it said.
Says Environmental Working Group (EWG) president Ken Cook, the “announcement makes clear that P&G is embracing these emerging consumer desires and preferences”.
The NGO has publicised P&G’s new ingredient disclosure and commended the company for its action. Mr Cook said he is “confident that other companies will soon follow the example P&G has set”.
Fragrance disclosure has been named as a state-level policy priority in 2016, according to NGO Safer States.
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Enviro Challenge to Crude-by-Rail Rule Dismissed
Mar 2, 2016 | E&E Energywire
By Ellen M. Gilmer
A nearly yearlong legal battle over the Obama administration's new rules for crude-by-rail safety ended yesterday as a federal court dismissed a lawsuit from environmental groups.
The Sierra Club, the Center for Biological Diversity, ForestEthics and other groups on Monday told the court their core arguments against the Department of Transportation's rule were resolved when Congress passed the Fixing America's Surface Transportation (FAST) Act late last year.
The groups originally argued that DOT's attempts to increase safety on rail lines that carry crude oil across the country failed to create adequate standards for tank cars and would leave dangerous cars on the tracks for too long, endangering nearby communities (EnergyWire, May 15, 2015).
The FAST Act addressed many of those concerns, closing what many deemed a loophole that allowed unsafe tank cars to remain in service (EnergyWire, Dec. 7, 2015).
Though the groups signaled in a mid-December court filing that they still had many concerns about crude-by-rail oversight, this week's filing at the U.S. Court of Appeals for the District of Columbia Circuit noted that "this legislation resolved and rendered moot the core claims that formed the basis of the Sierra Club's case."
The use of rail to transport crude oil has dramatically declined in the face of the oil price downturn. Still, many environmental groups have vowed to keep fighting proposed facility expansions (EnergyWire, Feb. 16).
Rail industry groups, meanwhile, have their own arguments against the rule pending before the D.C. Circuit. While the FAST Act addressed several industry concerns, the Association of American Railroads, American Short Line and Regional Railroad Association, and Union Pacific Railroad Co. yesterday asked the court to put their complaints on hold while DOT considers whether to keep a provision that would require electronically controlled pneumatic brakes for certain operations.
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Crews Work to Clear NY Tracks Where 16 Freight Cars Derailed
Mar 2, 2016 | AP (In The New York Times)
Crews worked Wednesday to clear the site of a 16-car Norfolk Southern freight train derailment that forced the evacuation of dozens of western New York homes after ethanol leaked from two tankers.
A spokesman for the rail company and police said the train left the tracks around 9:30 p.m. Tuesday in the town of Ripley, which sits along Lake Erie, near the Pennsylvania border about 60 miles southwest of Buffalo.
No one was injured and there was no fire, emergency response officials said, but two of the derailed cars contained ethanol that leaked. Chief Mark Smith of the Ripley Volunteer Fire Department said the leaks from both cars were contained Wednesday morning.
A derailed tanker containing propane is intact, officials said.
A state of emergency is in effect in the town, Smith said.
There was no immediate word on what may have caused the accident.
Dozens of firefighters who responded to the scene endured 20-degree temperatures, snow, freezing rain and winds that gusted to 30 mph overnight, emergency officials said. Heavy equipment was brought in to right the overturned cars, while the remaining ethanol was being transferred from the derailed tankers to trucks, Smith said.
Between 50 and 55 homes in the town of about 2,400 were evacuated due to the potential risk of an explosion and fire the ethanol and propane posed, Smith said.
"It could have been a lot worse," he said.
Nearby schools were closed and about 30 residents were given assistance at a shelter set up at a local church, officials said.
The derailment occurred on one of four sets of tracks along a stretch of rails running through a section of town located just a couple miles from the Lake Erie shoreline in western Chautauqua County.
All four tracks were shut down for a time, but one was reopened to CSX freight traffic a few hours after the derailment. There was no immediate estimate on when the other three tracks would be cleared for traffic that includes Amtrak passenger trains and other freight trains, Smith said.
The accident has interrupted Amtrak passenger service between Chicago and New York City. Amtrak said the eastbound Lake Shore Limited is being stopped Wednesday at Cleveland while the westbound train is being halted at Buffalo. Buses are being used to ferry passengers in both directions to stations in the two cities.
"We want to make sure we get life back to normal, train traffic back to normal, as soon as we can, but we have to do this safely," said Norfolk Southern spokesman David Pidgeon.
Gov. Andrew Cuomo said in a statement issued at 1:10 a.m. Wednesday that the derailment had occurred "at approximately 11:20 p.m. Tuesday." His office later corrected the time of the derailment to 9:39 p.m. but offered no explanation for the mistake.
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Tasking Deese with High Court Pick Could Send Climate Signal
Mar 2, 2016 | Jean Chemnick
By E&E Climatewire
The White House senior official who helped bring home a long-sought global climate deal last year now faces perhaps the tougher challenge of shepherding a Supreme Court nominee past a recalcitrant Senate.
The White House announced this week that senior adviser Brian Deese will lead the team responsible for filling the high court vacancy created by Justice Antonin Scalia's death. White House press secretary Josh Earnest said during a Monday evening briefing that Deese's success in rising to previous challenges -- including the Paris climate negotiations and the auto industry bailout during President Obama's first term -- earned him the job.
"Given Brian's performance in those other priorities, I don't think it's particularly surprising that he would be tapped for this responsibility, too," he said.
Others, including Secretary of State John Kerry and top U.S. negotiator Todd Stern, also helped deliver last year's climate deal.
"But Brian certainly deserves a lot of credit," said Earnest. "And in terms of moving that over the finish line, Brian played a key role here in the White House."
Deese took over his current post from John Podesta in February 2015 after President Bill Clinton's former chief of staff departed to take the helm of Hillary Clinton's presidential campaign. Podesta spent his time in Obama's White House creating the administration's message on climate change, brokering a game-changing deal with China on greenhouse gas emissions, and supporting and defending U.S. EPA's marquee Clean Power Plan.
But the U.N. climate talks were not in the bag when he left, and the process has a history of delivering false starts and disappointments.
It was left to the U.S. team led by the State Department and White House -- which suddenly included a 37-year-old Deese -- to negotiate a deal that was both ambitious and carefully written to avoid Senate participation.
While some critics argue the deal wasn't strong enough, it did keep the U.N. process alive.
The go-to guy
Nathaniel Keohane, vice president of global climate at the Environmental Defense Fund, said Obama has shown his confidence in Deese, both in entrusting him with the task of delivering in Paris and now in securing a Supreme Court nominee.
"If the president had anything in the White House he needed doing quickly, he'd ask Brian," said Keohane, who worked with Deese at the National Economic Council (NEC) during Obama's first term.
The "pattern of calling on Brian" began in the first year of the Obama administration, Keohane said, when he took a lead role in the new White House's effort to shore up U.S. auto manufacturers -- something Obama frequently cites as a top economic accomplishment.
He also took lead roles at NEC and the Office of Management and Budget before taking the top climate position that Podesta had created for himself.
"The fact that Brian didn't miss a beat when Podesta left and has been able to deliver these remarkable achievements makes the Supreme Court assignment not a complete surprise," said Paul Bledsoe, a former climate official in the Clinton administration.
Bledsoe said Deese's appointment shows not only the confidence Obama has placed in Deese's abilities but also the importance of his climate policy expertise.
"I think it just shows that climate change remains a top-tier policy item for the president," he said.
The future of the Clean Power Plan could ultimately depend on who replaces Scalia, whose final official act in February was to join a five-vote majority in delaying implementation of the Clean Power Plan. A court with a liberal majority could ensure the survival of the rule, which aims to cut power-sector emissions by 32 percent compared with 2005 levels by 2030. It would also help deliver the administration's commitments made in Paris.
Pete Ogden, a senior fellow at the Center for American Progress, noted that many saw the stay as a "signal of concern for whether the Supreme Court would ultimately uphold" the rule.
"The decision of the next Supreme Court justice will play into the fate of the Clean Power Plan, and Deese's understanding of the Clean Power Plan and its role in the broader international climate architecture they built is second to none," he said.
A political move?
With Deese now spearheading the search for Scalia's successor, there's no possibility that issue will be forgotten in this process, he said.
But the White House faces very long odds in persuading the GOP-controlled Senate to consider any nominee before November's election. Republican members of the Senate Judiciary Committee have all signed a letter stating they will not hold a hearing on any Obama nominee, and Majority Leader Mitch McConnell (R-Ky.) visited with the president yesterday to reiterate his opposition to holding votes on the nominee.
Ogden notes that making breakthroughs in difficult negotiations seems to be a strong suit for Deese.
But while parties to the U.N. Framework Convention on Climate Change may have their differences, last year's conference never descended into gridlock. The same may not be true of election-year politics in Washington, D.C.
Jeff Holmstead of Bracewell LLP, who was involved in vetting candidates for the high court when he served in the White House counsel's office during the George H.W. Bush administration, said choosing Deese for this task might be viewed by some as a political maneuver.
The White House counsel's office and the Justice Department usually do this work, he said. Deese has a degree from Yale Law School but is not an attorney.
"It is unusual to have a non-lawyer in charge of selecting candidates to serve on the Supreme Court," said Holmstead.
"Given Brian's lead role in promoting various climate change initiatives and the fact that the Supreme Court will ultimately decide the fate of the president's Clean Power Plan, some people speculate that putting him in charge of the selection process is a way to reassure the environmental community that the White House is looking for candidates who will vote to uphold the Clean Power Plan," he added.
Deese is not giving up his day job. The White House said yesterday that he will continue to oversee and advise the president on climate, energy and conservation issues and carry out other duties during the nomination process.
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'Don't Sweat It' on Clean Power Plan -- McCarthy
Mar 2, 2016 | E&E Greenwire
By Christa Marshall
U.S. EPA Administrator Gina McCarthy today said the recent Supreme Court decision to stay the Clean Power Plan "in no way" signals it is not legally defensible and will not "in the end win."
"It will continue, it will survive, it will be litigated on its merits as we know everything EPA does is. So if this is the first time you've been involved in looking at EPA in terms of the courts, don't sweat it. ... We do really well, and we're going to do great here," she told a packed room at the Advanced Research Projects Agency-Energy, or ARPA-E, summit in suburban Maryland.
McCarthy has been making similar comments about the Clean Power Plan for weeks, but today she also touched on a range of issues like the Keystone XL pipeline during a discussion with Jason Grumet, founder and president of the Bipartisan Policy Center.
She reiterated her view that the flexibility in the Clean Power Plan opened up "a lot of dialogue" in states that was not there before. While there was some confusion among states in the beginning, the freedom in the plan "grew on them," she said.
In her view, the rule was really a follow-up to a market push for renewables and clean power that was already happening. "The momentum is not just coming from the states anymore. ... It's also coming from the business sector," she said.
Nuclear power, she said, is finding it difficult in some ways to compete as older plants are facing tough permitting decisions. "That is something we found very difficult, to do anything other than recognize in the system in the Clean Power Plan. ... We tried to be very technology-neutral in this," she said. If the United States starts losing existing nuclear facilities and doesn't make that up with clean energy, a "tremendous" amount of emission reductions need to be made up elsewhere, she said.
McCarthy also weighed in on President Obama's decision to deny a permit for TransCanada Corp.'s Keystone XL pipeline. She said she doesn't know why the pipeline became such a political symbol, but the permit denial "certainly hasn't damaged our relationship with Canada one bit."
"It was the right decision at the right time," she said.
When asked by Grumet about rulemaking challenges, she pointed to a recent proposal to regulate methane from the oil and gas sector, which received a flood of comments. Unlike power plants, oil and gas regulation involves thousands of small components in remote areas, making technology developments critical. "We need new tools," McCarthy said.
"That's where we have, I think, the most difficulty. How do you write a rule that recognizes where technology is today but allow technology improvements to be brought into the system?" she said.
EPA proposed rules last year on methane emissions from new oil and gas wells, but didn't address existing wells (Greenwire, Jan. 26).
Other officials take stage
The annual ARPA-E summit over the past few years has served as a forum for public officials to share their policy views. Yesterday, former Vice President Al Gore said cap and trade was at a tipping point (Greenwire, March 1). Energy Secretary Ernest Moniz added that he remained optimistic about the administration's request to increase clean energy research and development as part of a broader climate change plan.
After testifying separately yesterday before a House subcommittee, Moniz said, "Clearly, concerns were expressed by the chairman. ... But the tone was pretty positive about the innovation agenda." He also joked about writing a spy novel after leaving the Energy Department.
This morning, Sen. Chris Coons (D-Del.) added to the flood of opinions on presidential election politics, saying "sure" when asked whether Sen. Marco Rubio of Florida was his favorite Republican presidential candidate. He noted his work with Rubio on various innovation bills. Coons made a push for his bill (H.R. 1656) that would provide the first permanent tax advantage for renewables, along with a funding boost for carbon capture and efficiency. The measure almost made it into last year's tax extenders package, he said. But "we might not get anything until next year," considering the current political dynamic, he said.
Meanwhile, Rep. Bill Foster (D-Ill.), the only congressional lawmaker with a doctorate in science, said he was concerned about the prospects that scientists may have to tap geoengineering techniques in the future to address climate change. It could happen if the choice was between saving the Greenland ice sheet and shooting sulfur particulates in the air, he said.
"It would be a tragedy if we had to go there," he said.
And prospects for a carbon tax in Congress? "You would have to find a word other than 'tax' to describe it," he said during a panel discussion with The Wall Street Journal reporter Amy Harder.
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Heinzerling Fears 'Flood' of New Stay Petitions After High Court Blocks ESPS
Mar 2, 2016 | InsideEPA
By Dawn Reeves
Georgetown law professor and former EPA policy chief Lisa Heinzerling is warning that the Supreme Court's recent decision to stay the agency's power plant greenhouse gas rule during judicial review -- the first time the court has taken such a step -- set a poor precedent that could prompt a “new flood of premature” petitions seeking to stay other rules.
In a paper slated for publication later this year, Heinzerling says the high court vastly overstepped its bounds in granting a stay of a rule before a lower court had addressed its merits, suggesting that the court “doubled down on a set of highly problematic interpretive principles it has embraced in recent Terms and accepted a disquietingly broad view of the nature of the harm justifying a stay.”
The stay, which rests on an “unclear jurisdictional basis” and has no basis in Supreme Court rules, may also invite “a new flood of premature administrative challenges,” she writes in the paper, “The Supreme Court's Clean-Power Plan Power Grab,” to be published in the May issue of the Georgetown Environmental Law Review.
Heinzerling -- who helped litigate the landmark GHG case Massachusetts v. EPA and while at EPA helped draft its finding that GHGs endanger public health and welfare -- argues the stay creates vast confusion and that the unexpected death of Justice Antonin Scalia -- who cast the decisive 5-4 vote -- days after the stay grant further muddies the picture.
Since the high court Feb. 9 stayed the GHG existing source performance standard (ESPS), also known as the Clean Power Plan, a coalition of 20 states Feb. 23 filed a petition asking the justices to stay implementation of EPA's air toxics rule for power plants, citing in part the high court's decision to block the ESPS.
The states opposing the mercury and air toxics rule (MATS), also known as the maximum achievable control technology standard, want the justices to halt the rule pending what they say will be a fresh request for the Supreme Court to weigh in on the regulation after EPA completes its work on remand.
The agency is overhauling the air toxics rule after the Supreme Court in a 5-4 ruling in Michigan v. EPA last June faulted the agency for not considering costs in its initial decision that the rule was “appropriate and necessary.”
Ironically, it was EPA's reaction to the high court's ruling in Michigan that may have prompted the stay of the ESPS after EPA Administrator Gina McCarthy said the court's requirement to assess the cost of the MATS was not a loss because many utilities had already taken steps to implement the measure and projected confidence that the rule would remain in place after officials shored up their cost analysis.
But her comments provided the core of many critics' efforts to stay the ESPS when they charged that, like the air toxics rule, states would be forced to implement the GHG rule prior to judicial review.
But one environmentalist doubts the court will now stay the MATS in part because Scalia's death leaves the court short of a five-member majority likely to grant such stays.
“It's obvious that the state filing was driven by opportunistic greed following the still-shocking decision by five justices to stay the Clean Power Plan. I don't know anyone that sincerely believes there are five justices on the Supreme Court now willing to stay” the air toxics rule, the source says of the states' new request to block the rule.
'Delicate Flowers'
In her new paper, Heinzerling harshly criticizes the Supreme Court “on the merits” for failing to explain its stay grant and says its “implicit” finding that the EPA rule's implementation would cause irreparable harm during court review “appears to have rested on an almost parental protectiveness toward the states and/or the energy industry.”
That is because no legal deadline was imminent, she says, meaning the court must have found it unacceptable to press the states to take initial steps toward opting in or out of the program, a finding that “would not only reflect a new and aggressive antipathy to a regime of cooperative federalism, but would also envision the states as delicate flowers that must be sheltered, at all costs, from federal stimuli.”
Further, she notes that the high court is mostly an appellate court that reviews judgments of lower courts. Here, however, the applicants for a stay did not seek review of the judgment of a lower court, which declined their request to stay the rule, but instead asked the court to stay the rule itself.
“No party, in other words, paired its application for a stay with a petition for certiorari asking the Court to review the D.C. Circuit's denial of a stay. Instead all parties asked the court to stay, not a judgment of a lower court, but the Clean Power Plan itself.”
And in doing so, the high court “acted not as an appellate court -- a court of last resort -- but as a court of first resort, with effectively original jurisdiction.”
The stay, which is based on unclear -- or non-existent -- jurisdiction creates even more uncertainty, Heinzerling writes. The identical orders granting five separate applications that did not share the same basis for the high court's authority to act. And even if the D.C. Circuit's denial of a stay could be considered a final judgment subject to review, the court's own rules say “nothing about final agency rules” and its authority to review them.
A better alternative, Heinzerling argues, would have been if the court had treated the stay requests as petitions for certiorari seeking review of the stay denial. This would have broken no new legal ground and would not encourage the new “flood” of administrative challenges.
It would have also fit the court's status as an appellate court, and would have forced the high court to “reflect more deliberately on its authority to order an executive branch entity to stand down from implementing a nationally applicable rule prior to any lower court decision on the merits.”
It would have also required the court to put the scope of its review into a “precisely worded question to be decided,” would have allowed for briefing and argument, and would have ended with a written explanation of the decision.
“Proceeding in this fashion also would have spared the D.C. Circuit the awkwardness of deciding a case in the shadow of the Supreme Court's premature consideration of the merits of the dispute,” she says.
Instead, the court “at once acted with maximal aggressiveness -- stopping a highly consequential agency rule before any court had ruled on its legality -- and coy passivity, saying nothing about its reasoning while putting the D.C. Circuit on notice that it did not trust it to do the right thing.”
Heinzerling says the justices should have explained their decision because as it stands, “we have no idea what question the justices were answering when they voted and no idea what their reasoning was in answering the question in the way they did.”
Stay Uncertainty
A lack of an explanation also leads to uncertainty regarding the court order, she says, noting that utilities had sought the extension of all compliance deadlines in the rule. But the court does not say whether it is granting this request as part of the stay application.
The court also does not say what EPA actions might be considered in noncompliance with the stay. “EPA is now in the midst of other rulemaking proceedings on issues emanating from the Clean Power Plan. May it continue with these processes . . . ? . . . The Court has lobbed one terse, unilluminating, and disruptive sentence into a complex and interconnected set of agency actions. It will not be surprising if confusion ensues,” the paper says.
Heinzerling adds that enforcing the stay is even trickier because of a lack of a decision under review means enforcement goes from the court to the executive branch. “But to whom in the executive branch does the Court's order run? Not for nothing does the Administrative Procedure Act specifically require that” any mandatory decree specify the federal officer responsible for compliance.
“Without such specification, it would be difficult to identify who in a vast administrative apparatus is responsible for ensuring compliance (or for failing to ensure compliance) with a judicial order to an agency.”
Such uncertainty may already be creating conflict as agency critics are seeking congressional oversight to investigate their concerns that EPA may be seeking to encourage states to implement the rule despite the stay.
For example, Marlo Lewis of the free-market Competitive Enterprise Institute said recently that “Congress should invite [EPA Administrator Gina] McCarthy to testify and explain what types of communications and coordination with state counterparts she has suspended and/or prohibited pending final resolution of . . . litigation on the merits.”
Lewis was responding to McCarthy's recent comments indicating that EPA will offer resources to states that voluntarily craft compliance plans during the litigation. “Are we going to respect the decision of the Supreme Court? You bet. Of course we are,” she told state officials last month.
But agency officials have also suggested that they may retain the rule's current compliance deadline while delaying the deadline for states to submit plans.
Legal Uncertainty
Heinzerling says Scalia's death Feb. 13 has also introduced further uncertainty because “[t]he remaining justices now stand tied, 4-4, on the propriety of staying the Clean Power Plan. The stay remains in effect, but who will enforce it?”
Also, she says the high court here may have “relied heavily on a recent and controversial interpretive canon that disfavors expansion of regulatory authority. She cites three recent cases where the court has embraced three new, “normative principles” of statutory interpretation, including most relevant its 2014 ruling in Utility Air Regulatory Group v. EPA, which narrowed the basis for EPA's GHG permit program.
Authored by Scalia, the ruling was critical of the agency for finding vast new authority in a long existing statute, providing language that critics of the ESPS cited frequently in their push to stay -- and vacate the regulation.
However, Heinzerling says these “power canons have no credible link to an assessment of likely congressional behavior or desires. . . . As such, they are the most dangerous kinds of interpretive canons from a democratic perspective -- normative instructions running from unelected judges to the legislative and executive branches, untethered to any plausible constitutional foundation.”
In sum, Heinzerling says the stay has created “Pandora's new mess” that enters “new terrain, where four of the remaining justices stand willing to call a halt to agency regulations before any other court has issued an initial decision on the merits,” opening “a new world of opportunity for those disappointed with agency regulations.”
This, combined with recent rulings “constraining agencies' interpretative discretion when the regulatory stakes are high suggest that the new avenue of relief may be open mostly to regulated entities, not regulatory beneficiaries” and leaves the impression that the court “is quite willing to inject extreme uncertainty into a regulatory scheme, in the service of its general antipathy to an active administrative state.”
This means the court is “happy to leave the public and political branches of government in a state of extreme uncertainty about their rights and their powers. This is not a jurisprudence of restraint; it is a jurisprudence of anxiety.”
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Ariz. Weighing Post-Stay Options After 'Turbulent' Events
Mar 2, 2016 | E&E Climatewire
By Emily Holden
Arizona air regulators are still deciding whether to keep planning for U.S. EPA's Clean Power Plan after the death last month of Supreme Court Justice Antonin Scalia further clouded the outcome of the embattled power plant rule.
Eric Massey, director of the Department of Environmental Quality's Air Division, said during a public stakeholder meeting yesterday that the high court's decision to halt implementation of the rule combined with Scalia's death made for a "very turbulent February."
The stay looked like bad news to observers for the rule's chances of survival, but Scalia's absence from the bench means the Clean Power Plan might be more likely to succeed, according to some analysts.
The Arizona Corporation Commission has joined in the legal fight against the rule, but state officials nonetheless continue to work through compliance questions. DEQ officials haven't met to discuss the Clean Power Plan since Feb. 10, the morning after the Supreme Court issued the stay. Agency leaders said then that they would collect feedback and consider whether to stop planning work.
Massey said DEQ has heard mixed feelings from power companies and advocates, with some wanting to keep up to speed with planning efforts and others saying that would be a waste of resources if the courts strike down the rule or impose major changes.
DEQ is reviewing legal precedent for when a rule is put on hold but ultimately upheld. The state is trying to figure out how much time it might have to write a carbon-slashing blueprint if EPA successfully defends the regulation.
Ultimately, judges might decide whether EPA can stick to its timeline for states to submit plans and start reducing power-sector emissions ahead of a final 2030 goal.
DEQ is considering putting its planning work into a "time capsule," so that stakeholders could easily start up again if the rule is upheld, DEQ officials said.
In the meantime, the agency has been moving ahead with its normal process.
Yesterday, dozens of government, industry and environmental interests heard from the consulting firm Pace Global that the state is better poised to achieve a rate-based standard than cap emissions outright. The firm looked at the potential emissions from Arizona power companies when the rule is expected to take effect. Planned coal retirements are anticipated to help bring down the state's average rate of emissions.
For states that choose to cap emissions, or use a mass-based standard, EPA offers them the option of limiting new sources of carbon emissions, in addition to existing ones. But the Pace Global analysis indicates that the additional headroom under those goals wouldn't be enough to account for growth expected from new natural gas plants.
Massey said looking at the data is important because DEQ wants "to be strategic in our ability to understand and then pursue the right level of analysis." DEQ could move forward in considering the details of what it would mean to write a rate-based plan.
Another consideration DEQ must make is whether shifting to more natural gas in Arizona might force areas of the state into nonattainment with ozone rules.
DEQ has tentative plans to meet again on April 5 and will continue outreach with communities that might be most vulnerable to health impacts from coal plants.
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Years of Work Remain on Tardy Toxics Reviews -- EPA Official
Mar 2, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA, already far behind in conducting legally required reviews of toxic air pollutants, will need years more to finish 20 that are now the subject of a lawsuit, a senior manager said in a recent court filing.
"Given the funding and other resource constraints facing the agency, EPA is not able to perform all activities that it may want to perform, and that it is authorized to perform, at any given time," Panagiotis Tsirigotis, director of the sector policies and programs division within EPA's air quality standards office, said in a declaration entered last week in U.S. District Court for the District of Columbia.
Under the Clean Air Act, EPA was supposed to have completed a residual "risk and technology review" of hazardous air pollution from integrated iron and steel plants by 2011; Tsirigotis has instead proposed wrapping it up in 2018. A review of emissions from hydrochloric acid producers, also due in 2011, would be pushed back until 2019. For boat manufacturers, the lookback originally scheduled for 2009 would instead conclude with a final rulemaking in 2021.
Tsirigotis' filing, made under penalty of perjury, is part of EPA's bid to end a lawsuit brought last year by a coalition of environmental groups that want past-due reviews of a total of 20 emission sources completed on a much tighter timetable.
All fall under the umbrella of major pollution sources and encompass several thousand facilities that each spew tons of emissions -- including carcinogens -- each year, California Communities Against Toxics and eight other groups wrote in a November 2015 motion. For half of the 20 sources, they said, EPA should complete reviews within a year, with the remainder following a year later.
Taking any longer "would set back the agency's work even further on other rulemaking obligations coming due," they added.
U.S. District Judge Tanya Chutkan has not yet ruled on either side's motions for summary judgment.
The standoff is among the latest in a long-running series of court clashes over EPA's handling of the air toxics review mandates set by the 1990 Clean Air Act Amendments.
The law sets out 189 pollutants to be regulated; after establishing emissions standards for major sources based on what is known as "maximum achievable control technology," the agency is then supposed to follow up with another review within eight years to determine both whether the technology has improved and whether any "residual risk" remains to public health, according to court filings.
But the agency has been chronically tardy in hitting that eight-year mark. In its November filing, the plaintiffs' coalition described EPA's overall track record on meeting the 1990 air toxics mandates as "dismal." It also attached a 2006 Government Accountability Office report that called the program a "relatively low priority" within EPA, with an agenda driven more by lawsuits than a comprehensive implementation strategy.
GAO has not revisited those findings, which EPA leaders at the time did not specifically dispute. And litigation remains important in prodding the agency to act, court records indicate. As one reason for needing up to five years to finish the 20 reviews in question, Tsirigotis pointed to four others required as the result of other court action.
Tsirigotis also laid out a timeline for the actual mechanics of carrying out the review.
Among nine distinct steps, EPA will have to collect fresh information from many of the polluting sources, put together risk assessments and then develop final rules. On a shorter schedule, EPA "would be forced to take procedural or analytical shortcuts that I believe could jeopardize both the soundness of the regulatory actions and their legal defensibility," Panagiotis said. No recent residual risk and technology review has been completed in less than 2 ½ years, he added, and any suggestion that the job can be done more quickly "is without merit."
The plaintiffs argue their proposed two-year window furnishes plenty of time. EPA "has consistently completed complex Clean Air Act rulemakings within five to seven months" of the original proposal under the same process required for the risk reviews, according to their November motion. If resources are a barrier, they said, the agency can hire contractors and redirect staff "from the many discretionary actions and initiatives it is currently undertaking."
EPA is facing at least two other legal challenges intended to force it to move more quickly on residual risk and technology reviews for other air pollution categories.
In a lawsuit filed last week, four other environmental groups said that regulators are as many as six years overdue in revising standards for 13 sources, while a separate complaint launched a year ago in the Northern District of California similarly alleges that the agency is behind schedule and is relooking at emissions standards for yeast manufacturers and pulp mills. Attorneys from Earthjustice are representing the plaintiffs in all three cases.
In a declaration in the California case similar to that of Tsirigotis, acting EPA air chief Janet McCabe said last August that the agency needed until mid-2017 to finish the pulp mill review, followed by the yeast makers retrospective at the end of 2018. The plaintiffs, the Sierra Club and California Communities Against Toxics, contend that one year is enough for both. After a October hearing, U.S. District Judge Haywood Gilliam has not ruled on competing motions for summary judgement.
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Studies Finding Underestimated Mercury Cut Benefits May Boost EPA Rule
Mar 2, 2016 | InsideEPA
By Stuart Parker
Two recent studies by academics and government scientists say EPA underestimated the health benefits of reducing mercury emissions and that reductions from sources such as power plants benefit nearby residents more than previously thought, potentially boosting EPA's finding that its utility mercury rule is "appropriate and necessary."
EPA is working on finalizing a "supplemental" finding that weighs the costs of its 2011 power plant mercury maximum achievable control technology (MACT) rule -- also known as the mercury and air toxics standards (MATS). The agency proposed the supplemental finding Dec. 1 in response to a Supreme Court ruling that faulted EPA for not considering costs in its initial determination that the rule was necessary under the Clean Air Act.
In its proposed supplemental finding, the agency argues that no changes to the substance of that rule are required by its new consideration of costs. EPA proposes to find those costs are reasonable relative to the health benefits of MATS, but stopped short of conducting a new full cost-benefit analysis, opting instead to rely largely on the existing cost-benefit study conducted for the MATS rule when it initially crafted the regulation's emissions limits.
Industry groups in their comments on the supplemental finding disagree with EPA's approach. Meanwhile, MATS remains in effect pending the supplemental finding, and will be fully implemented by April 16 -- but opponents of the rule are urging the Supreme Court to stay its implementation.
Although the power sector is also pushing back on the cost review, the two recent studies could potentially help EPA defend the regulation by showing projected underestimates of the benefits of cutting mercury.
In a January 15 article in the journal Environmental Science and Technology, published by the American Chemical Society, academics from Harvard and Syracuse Universities, the universities of Michigan, Washington, Connecticut, and also Dartmouth College and the Biodiversity Research Institute in Portland, ME, say that EPA has drastically underestimated the benefits of mercury reduction from electrical generating units (EGUs).
The researchers say, "[W]e find the monetized benefits for EGU mercury emissions reductions identified by EPA in the regulatory impact analysis [RIA] supporting MATS vastly understate the benefits associated with reductions of those emissions." The RIA is a document that outlines the projected costs and benefits of a regulation. And mercury is just one of the hazardous air pollutants (HAPs) emitted by EGUs, they note.
EPA in its 2011 RIA for MATS said the agency could not then quantify the health benefits of curbing power plant HAP emissions. Instead, EPA relied on reductions of fine particulate matter (PM2.5) as a "co-benefit" of the rule to supply the overwhelming majority of the rule's monetized benefits, drawing criticism from industry and GOP opponents of MATS.
The late Supreme Court Justice Antonin Scalia, writing the majority 5-4 opinion in Michigan v. EPA on the lack of a cost review for the "appropriate and necessary" finding, avoided a ruling on the co-benefits issue. But the question may recur in any litigation industry brings against EPA's supplemental cost review once final.
EPA estimated the benefits of mercury reduction at between only $4 million and $6 million annually, but estimated PM2.5 benefits in the billions of dollars, to give a total estimated benefit of between $37 billion and $90 billion, far outstripping the estimated costs of $9.6 billion.
"If one considers instead all of the benefits of reducing EGU mercury emissions, recent research confirms that the benefits are orders of magnitude greater than those quantified by EPA in 2011," the article says.
Mercury Reductions
The researchers also say EPA in 2011 underestimated the local benefits of EGU mercury cuts, because of a common misconception that mercury emissions mix in the atmosphere and are mainly deposited globally rather than around the power plant. While mercury does mix in this way, the global mixing and deposition has been overstated, they say.
For the past two decades, "mercury researchers have noted slow and steady declines in atmospheric mercury concentrations in North America, Europe, and over the open oceans. Initial attempts to rationalize these observations from a scientific perspective were confounded by a commonly held (but incorrect) assumption among researchers that global mercury emission trends from anthropogenic sources were steady or increasing over this same time period," they say.
The researchers point to recent studies that have corrected this assumption, saying, "This correction helps enable global models to reproduce the observed declining atmospheric mercury trends and shows that local and regional mercury deposition to U.S. ecosystems is much more influenced by domestic actions than previously thought."
Results from one such study announced in a Jan. 13 statement by the U.S. Geological Survey (USGS), conducted by researchers from USGS, Harvard, Peking University, the Max Planck Institute for Chemistry and the University of Alberta, confirm this finding.
The study, "Observed decrease in atmospheric mercury explained by the global decline in anthropogenic emissions," appeared in January in the Proceedings of the National Academy of Sciences.
The study finds that manmade mercury emissions have declined 30 percent from 1990 to 2010, in large part because of controls installed on coal-fired power plants and switching of coal plants to natural gas. While emissions have risen in Asia, cuts in North America and Europe have more than compensated for this rise.
USGS scientist David Krabbenhoft, a study co-author, said, "our research shows that local and regional efforts to reduce mercury emissions matter significantly. This is great news for focused efforts on reducing exposure of fish, wildlife and humans to toxic mercury."
Another study co-author, Vincent St. Louis of the University of Alberta, Canada, said, "This is important for policy and decision-makers, as well as natural resources managers, because, as our results show, their actions can have tangible effects on mercury emissions, even at the local level."
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District Court Urged to Extend Stay of CWA Rule Suit
Mar 2, 2016 | InsideEPA
Agriculture and other industry groups are urging the U.S. District Court for the Northern District of Georgia's Atlanta Division to extend a stay of litigation over EPA's Clean Water Act (CWA) jurisdiction rule pending the outcome of rulings in two appellate cases on which courts should hear challenges to the regulation.
“Staying this case while the appellate jurisdictional review process resolves is the most efficient method of handling the continued jurisdictional uncertainty,” says a March 1 motion filed with the district court by the Southeastern Legal Foundation, Georgia Agribusiness Council, Inc., and Greater Atlanta Homebuilders Association, Inc.
The groups fear that if the lower court case is allowed to proceed, the court will opt to dismiss the proceedings given that a majority decision by a three-judge panel of the U.S. Court of Appeals for the 6th Circuit said it has authority to hear suits over the CWA rule, which EPA jointly crafted with the Army Corps of Engineers.
In a 2-1 decision issued Feb. 22, the 6th Circuit panel said it had jurisdiction over consolidated challenges to the CWA rule both as an “other limitation” under section 509(b)(1)(e) and a permit governance under section 509(b)(1)(f). Judge David McKeague, writing the lead opinion, said that although the water law is unclear on where suits over the rule should start, the effects of the rule qualify for 6th Circuit rule under either section.
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 on reviewing CWA rule challenges established by a 2009 ruling in National Cotton Council 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.
A coalition of industry petitioners on Feb. 29 filed a petition for en banc review of the decision by the full 6th Circuit, citing the divided decision and urging the court to overturn the ruling and also the National Cottonprecedent.
The 11th Circuit is also reviewing a lower court decision that said the proper venue for hearing challenges to the CWA jurisdiction rule.
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Green Venture Seeks to Turn Back Clock on Carbon Emissions
Mar 2, 2016 | Wall Street Journal
By Chester Dawson
A project backed by Bill Gates and a Canadian oil baron is attempting to turn back the clock on greenhouse gas emissions by snatching carbon dioxide particles out of thin air.
The initiative, by Calgary, Alberta,-based Carbon Engineering Ltd., holds the prospect of powering vehicles using fuel reconstituted from tailpipe emissions, while helping to reduce greenhouse gases. And it comes as policy makers and scientists look at such “carbon-negative” technologies as a potential solution to the challenge posed to industrial growth from limiting emissions.
In November, the last phase of Carbon Engineering’s test facility started up after it began last summer taking carbon dioxide from the air in this picturesque coastal town 40 miles north of Vancouver. A giant fan on the site of a former chemical plant sucks up briny Pacific air and blows it over lye-soaked plastic sheets, which snag carbon dioxide for processing and purification.
Known as direct-air capture, this experimental method of reducing emissions differs from other techniques that focus on carbon absorption at the point of release, typically a power plant or refinery. Critics, though, call it a waste of resources and even some experts who support the concept in theory say it will remain impractical for at least another decade because of the significant cost and technical hurdles.
To capture the same amount of carbon as a smokestack scrubber on a coal plant, a direct-air capture plant would need a site the size of 15 football fields, according to a recent National Academy of Sciences report. That would require a substantial up-front investment in land, construction and materials costs. It also requires more energy—in the form of electricity or natural gas—to operate than comparable carbon capture techniques attached to gas- or coal-fueled power plants.
David Keith, a Harvard University applied physics professor, established Carbon Engineering in 2009 with seed money from a handful of philanthropists, including Mr. Gates and Murray Edwards, the billionaire chairman of Canadian Natural Resources Ltd., one of Canada’s largest oil-sands mine operators.
The investors provided about two-thirds of the capital to fund the 8.5 million Canadian dollar ($6.3 million) pilot, with the remainder coming from Canadian federal and provincial government subsidies.
The Canadian company is one of a handful of startups hoping to commercialize direct-air capture techniques.
N.Y.-based Global Thermostat LLC, which is backed by former media mogul Edgar Bronfman Jr., operates a small-scale pilot at the Stanford Research Institute in California. A Swiss company, Climeworks AG, plans to build a EUR 3.4 million ($3.7 million) plant in Switzerland by mid-2016 capable of capturing 2.5 tons of carbon a day and supplying it to a greenhouse.
The United Nation’s Intergovernmental Panel on Climate Change said in a report last year that removing carbon dioxide from the atmosphere was a tantalizing future option but it remains unproven.
“It can be done. The question is, at what cost?” said Robert Socolow, a professor emeritus at Princeton University and co-director of the school’s Carbon Mitigation Initiative. “It’s cheaper just to stop putting it in the atmosphere at the source,” he said.
Carbon Engineering hopes its pilot will demonstrate the technology’s economic viability and pave the way for larger-scale commercial projects in North America. The Squamish program processes more than 1 million cubic meters of air a day to produce one metric ton of carbon dioxide—a fraction of the estimated 3,000 tons a day the company says a large-scale plant would yield.
The government of British Columbia has commissioned the company to complete a feasibility study on producing “carbon-neutral” synthetic diesel to power the municipal bus fleet in Squamish.
“Scaling it up is very low risk,” Carbon Engineering’s chief executive, Adrian Corless,said. “The individual parts we use aren’t new, just the way we’ve knitted them together is.”
One cost innovation is that the facility substitutes less expensive plastic material for ceramic or stainless steel in the absorption beds onto which chemicals are sprayed and carbon is captured.
Carbon captured from the air at the Squamish test facility is embedded onto tiny sand grain-like pellets, which are incinerated to capture a stream of pure carbon dioxide. The pilot itself, which is meant to demonstrate the technology, isn’t carbon negative. Electricity off the grid powers the fan, natural gas is used to burn the pellets and the CO2 is immediately released back into the atmosphere. “It’s catch-and-release,” quipped the company’s founder, Mr. Keith.
The National Academy of Sciences report published in February 2015, which was partially funded by the Energy Department and other U.S. government agencies, called direct-air capture an “immature technology” that required up to 10 times more energy than capturing CO2 from the flue gas of gas- or coal-fueled power plants, where concentrations are up to 300 times higher.
Direct-air capture advocates counter that reducing emissions isn’t enough, and that the world must take steps to remove carbon dioxide already in the atmosphere. They say their systems can co-exist with more traditional clean technologies such as CO2-absorbing amine scrubbers installed in power plants.
Mr. Keith said Carbon Engineering’s technology breaks even at a carbon price of about $100 per ton, which is equivalent to the cost of standard CO2 capture from a coal-fired plant. Other estimates indicate direct-air capture requires a much higher carbon pricing premium.
Carbon Engineering plans to offset some of its operating costs by selling synthetic fuel created by combing captured carbon with hydrogen split from water molecules, a technique similar to one that German auto maker Audi AG recently made its debut as “blue crude” for diesel-power passenger cars.
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