Preview Newsletter
AM ACC 3/29/2016
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Stop Cynical Addition to Toxic Substantce Bill Rewrite
Mar 28, 2016 | Contra Costa Times
By Barbara Parker
Last November, I filed a lawsuit on behalf of the city of Oakland to hold the Monsanto chemical company accountable for decades of pollution of Oakland's storm water and the San Francisco Bay with highly toxic... -
3 Laws Congress Needs to Pass to Reduce Toxic Chemicals
Mar 29, 2016 | Care2
By Diane MacEachern
Toxic chemicals are abound in many of the most common products we use every day. From breast cancer and reproductive failure to attention deficit disorder and various birth defects, we know that toxic chemicals... -
EPA to Release Nonbinding Heath Advisory for PFOA
Mar 29, 2016 | BNA Daily Environment Report
By Brian Dabbs
“EPA is currently in the process of developing an updated lifetime Health Advisory for PFOA based on the best available science,” Garvin told Bilott March 25. -
California Adopts Diisocyanate Airborne Exposure Levels
Mar 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California's Office of Environmental Health Hazard Assessment adopted airborne concentrations of toluene diisocyanate and methylene diphenyl diisocyanate state regulators will use in assessing exposure... -
Campbell to Remove BPA Chemical From Its Cans by Mid-2017
Mar 28, 2016 | AP (In The New York Times)
Campbell Soup Co. will stop using the chemical Bisphenol A in its canned products by the middle of next year to reassure consumers worried that the substance may harm their health. -
Scientists are Using Chemistry to FIght Off Counterfeit Coffee
Mar 29, 2016 | Washington Post
By Ryan F. Mandelbaum
You wait in line for your daily cup at your favorite coffee shop, like every morning. But today, something seems wrong with your precious, life-giving cup of joe. As the steam clouds your vision, you notice the familiar, nutty scent... -
Defending ESPS, EPA Makes the Case for 'Beyond-The-Fence' Controls
Mar 28, 2016 | InsideEPA
By Lee Logan
EPA is offering its formal legal defense of its landmark greenhouse gas standards for existing power plants, countering a host of arguments from state and industry critics, including the critical question of whether the agency... -
A Big Week in Court for the Clean Power Plan: Defenders of the Historic Measure File Briefs
Mar 28, 2016 | Environmental Defense Fund
By Tomas Carbonell
This is a big week for those of us fighting to protect theClean Power Plan in court. -
Drilling Is Making Oklahoma as Quake Prone as California
Mar 28, 2016 | New York Times
By Michael Wines
Californians have lived with the risk of a damaging earthquake for centuries. Now Oklahomans, and some Kansans, face the same threat, federal seismologists said on Monday. -
GAO: EPA Lacks Aquifer Data on Wastewater Injections
Mar 28, 2016 | PoliticoPro - Whiteboard
By Annie Snider
EPA doesn't have enough information to know whether drinking water aquifers are being sufficiently protected from injections of oil and gas wastewater and other materials, according to a government watchdog. -
Keeping My Fossil Fuel in the Ground
Mar 29, 2016 | New York Times
By Terry Tempest Williams
My husband, Brooke Williams, and I recently bought leasing rights to 1,120 acres of federal public lands near our home in Utah. The lease gives us the right to drill for oil or natural gas. -
Legacy Producers Sue to Stop New Oil/Gas Regulations in Pennsylvania
Mar 29, 2016 | Natural Gas Intelligence
By Jamison Cocklin
A trade group representing Pennsylvania's legacy oil and natural gas producers has filed a lawsuit against the state Department of Environmental Protection (DEP) to stop a package of new regulations that it claims... -
Industry Seeks Comment Extension for Pipeline Rule
Mar 29, 2016 | BNA Daily Environment Report
The Transportation Department should extend the 60-day comment period for its recently proposed rule for new pipeline safety requirements, the American Petroleum Institute, American Gas Association and other... -
EPA Sends Ozone & PM Air Screening Guide for OMB Review
Mar 28, 2016 | InsideEPA
EPA March 25 sent for White House Office of Management and Budget (OMB) pre-publication review a new guidance document advising air regulators on how to use screening tools known as “significant impact levels” (SILs)...
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Stop Cynical Addition to Toxic Substantce Bill Rewrite
Mar 28, 2016 | Contra Costa Times
By Barbara Parker
Last November, I filed a lawsuit on behalf of the city of Oakland to hold the Monsanto chemical company accountable for decades of pollution of Oakland's storm water and the San Francisco Bay with highly toxic Polychlorinated Biphenyls.
However, despite recognizing the harm caused by PCBs, Congress now is considering legislation that could immunize Monsanto against lawsuits that Oakland, Berkeley and other cities have filed against the company to recover clean-up costs.
The legislation in question would update the 40-year-old Toxic Substances Control Act, which by all accounts needs reform to cover hundreds of potentially dangerous chemicals.
Unfortunately, a paragraph recently added to the House version of the bill -- reportedly by Republican staffers at the House Energy and Commerce Committee -- would potentially block cities and states from suing Monsanto or passing their own laws and regulations regarding PCBs.
Even for our current Congress, this is a slimy move.
Monsanto was the sole producer of PCBs for decades prior to 1979, when the federal government banned the chemicals -- used in everything from paints to electronics -- because they endanger human and environmental health.
Monsanto knew that PCBs were toxic and could not be contained as they readily escaped into the environment, finding their way into bays, oceans, lakes, rivers, streams, soil and air.
Although evidence confirms that Monsanto recognized that PCBs were becoming "a global contaminant," well before the 1979 ban, it concealed this information and increased production of these profitable compounds.
Today PCBs are a common environmental contaminant found in all natural resources including water and plants as well as the tissues of marine life, animals and humans.
PCBs are one of the few toxic chemicals banned by international law, and they are listed by the EPA as "probable human carcinogens."
Monsanto is a $55 billion company with sales of about $15 billion a year.
The company owes its success in part to the money it made selling products that it knew were poisonous while misleading the country about the danger they posed.
The State Water Resources Control Board recently determined that the presence of PCBs in Oakland's storm water threatens San Francisco Bay as a habitat for fish and wildlife and interferes with the Bay's use and enjoyment by all Californians.
The board has issued orders that may require cities including Oakland to reduce the maximum daily load of PCBs that flow into bays and the ocean.
Obviously, cities would incur significant costs to comply.
The company that recklessly caused this contamination should pay to clean it up, not the taxpayers and the American people who will be deprived of vital services like police, fire, housing and libraries if cities have to spend their precious resources to clean up Monsanto's mess.
The so-called Monsanto Clause in the House version of the Toxic Substances Control Act is a transparent quid-pro-quo to benefit a company that has made significant campaign contributions every year to House Republicans -- and some Democrats as well.
We cannot allow Congress to make it harder for our cities to stand up for our legal rights. Nor should Congress allow Monsanto to evade responsibility for the massive fraud it perpetrated against our entire planet.
Barbara Parker is Oakland City Attorney.
http://www.contracostatimes.com/opinion/ci_29694819/guest-commentary-stop-cynical-addition-toxic-substantce-bill
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3 Laws Congress Needs to Pass to Reduce Toxic Chemicals
Mar 29, 2016 | Care2
By Diane MacEachern
Toxic chemicals are abound in many of the most common products we use every day. From breast cancer and reproductive failure to attention deficit disorder and various birth defects, we know that toxic chemicals can harm our health and impact future generations.
Though some laws are already on the books to reduce our exposure to these dangerous compounds, much more is needed to keep us safe and healthy. Here are three laws Congress can and should pass that would reduce our toxic exposures.
Overhaul the Toxic Substances Control Act – “TSCA” (pronounced toss-ka) was passed in 1976 to regulate the chemicals used in everyday products. However, when TSCA was passed, we knew far less about the impact chemicals have on our bodies, and there were fewer chemicals in circulation. Today, there are over 80,000 chemicals on the market. Only 200 have been tested for safety, reports Safer Chemicals, Healthy Families. And current law allows chemical manufacturers to keep the ingredients in some compounds secret, so it’s hard for consumers to know what they’re actually exposed to. A broad coalition of health, environmental and consumer organizations is urging Congress to reform TSCA by:
* Clearly requiring the law to protect the public and the environment from unsafe chemicals
* Require the Environmental Protection Agency to assess various chemicals and empower EPA to order companies to test the toxicity of their chemicals.
* Expedite the regulation of particularly toxic chemicals which bioaccumulate in our bodies, with a particular focus on PFOA, the chemical in Teflon-type products and asbestos.
* Give consumers the right to know what they’re exposed to.
You can read a complete description of the demands the public is making to strengthen TSCA here.
Pass a strong Personal Care Products Safety Act – Currently, the personal products we use, like shampoo, soap and cosmetics, are regulated by provisions of the Food, Drug and Cosmetic Act, which was passed over 75 years ago in 1938. The law was engineered by the cosmetics and personal care products industry so that the US Food and Drug Administration was NOT given the authority to require ingredients used in these products to be tested for safety. “As a result,” says Jamie McConnell, Director of Programs & Policy at the non-profit research organization Women’s Voice for the Earth, “today it is perfectly legal for cosmetics to contain harmful ingredients like formaldehyde (a known carcinogen), toluene (linked to birth defects), phthalates (also linked to birth defects and reproductive harm), styrene (a carcinogen), and even lead (a potent neurotoxin).”
Women’s Voices and many other health advocacy groups are urging Congress to pass a strong Act that:
* Gives the FDA the authority to get unsafe products off the shelves
* Directs the FDA to assess the safety of a minimum of 5 cosmetic chemicals a year, including those that contain formaldehyde
* Requires full ingredient disclosure, as well as a domestic telephone number or email on product labels to make it easy for consumers to find out what’s in the products they buy.
You can see a complete rundown of the recommended strong provisions for the Act here.
Require GMO Labeling – Right now, companies are not required to let consumers know when the food they produce is made with ingredients tainted by genetically modified organisms (GMOs). Earlier this year, industry attempted to pass legislation dubbed the “DARK” act, because it would have explicitly “Denied Americans the Right-to-Know.” That legislation was defeated, but companies still don’t have to disclose the presence of GMOs in their products. Several states, including Vermont, Connecticut and Maine, and 65 countries around the world, including all of the European Union, Russia and even China, require labeling. Polls show that nearly 90 percent of Americans support labeling to indicate the presence of GMOs.
Legislation has been introduced in the Senate that would ensure that consumers can find GMO ingredient labeling on food packaging. The “Biotechnology Food Labeling Uniformity Act” would specifically:
* Enable Americans to see whether a food has been prepared with GMO ingredients
* Require manufacturers to disclose the presence of GMOs
You can learn more about the benefits of GMO labeling, and keep abreast of the status of legislative action, on the Just Label It website.
http://www.care2.com/greenliving/3-laws-congress-needs-to-pass-to-reduce-toxic-chemicals.html
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EPA to Release Nonbinding Heath Advisory for PFOA
Mar 29, 2016 | BNA Daily Environment Report
By Brian Dabbs
“EPA is currently in the process of developing an updated lifetime Health Advisory for PFOA based on the best available science,” Garvin told Bilott March 25. “EPA is working with states and local communities to ensure that the latest information is available for purposes of making risk management decisions when it comes to drinking water protection and treatment.”
Bilott has pushed West Virginia and the EPA for roughly 15 years to address PFOA contamination in the vicinity of the Washington Works, a DuPont subsidiary-owned facility.
The attorney led a successful class action suit to force DuPont in 2005 to begin paying for water treatment, blood testing and medical surveillance in surrounding areas, but DuPont later stonewalled efforts to extend those benefits to Parkersburg, Bilott said. Action is needed now to restore drinking water and public health conditions in that town and Vienna, he said.
EPA Failing on Prevention
The EPA issued a provisional health advisory for PFOA, also known as C-8, in 2009, requiring DuPont to treat water that contains 0.40 parts per billion or provide safe drinking water to affected residents.
“As we've pointed out, it's far too high,” Bilott told Bloomberg BNA March 28, referring to the threshold. Also, “EPA hasn't come out to address long-term exposures, and that is troubling.”
The chemical is biopersistent, which means it can increasingly affect human health over time, Bilott said. Moreover, the Unregulated Contaminant Monitoring Rule requires water suppliers to report PFOA detection far above appropriate levels, he added.
“The problem is the current EPA reporting level is too high; they're only requiring water suppliers to report detection of PFOA at or above 0.02 ppb,” Bilott said. “We don't know what the actual prevalence is because we don't necessarily see all the data where PFOA is detected, but not above 0.02 ppb. You can control the quote ‘prevalence' by controlling the reporting level.”
PFOA No Longer in Use: DuPont
DuPont created a new company called Chemours following an internal division, and company spokeswoman Janet Smith said Chemours hasn't yet used PFOA.
“Chemours is aware that the U.S. EPA has been working for some time to finalize a permanent health advisory for PFOA, and we will await the agency's action,” Smith told Bloomberg BNA on March 28. “DuPont eliminated the manufacture and use of PFOA globally in 2013.”
Bilott urged the West Virginia Department of Environmental Protection, as well as Sens. Joe Manchin (D-W.Va.) and Shelley Moore Capito (R-W.Va.), to pressure action to address the contamination in a separate letter on March 24. Those lawmakers should use all resources at their disposal in light of a reluctance to act from the EPA and West Virginia, Bilott said.
“This total lack of response from US EPA and WVDEP ... contrasts markedly with how the regulatory authorities and potentially responsible companies are handling and responding to similar contamination situations occurring right now in other states,” Bilott said, pointing to aggressive action in New York, New Hampshire and Vermont. “The governors of those three states even sent a joint letter to U.S. EPA earlier this month seeking immediate action on behalf of their residents. Several of the companies identified as the sources of the contamination in those other states also have already accepted responsibility for paying at least some of the costs associated with the contamination.”
Manchin's office told Bloomberg BNA March 28 that they hadn't yet received the Bilott letter. Capito's office said staff haven't reviewed it.
State Working With EPA
Walter Ivey, director of the West Virginia Office of Environmental Health Services, told Bloomberg BNA that his agency has been working with EPA “for years” to evaluate the chemical.
“West Virginia relies on the expertise of the EPA and our federal partners to provide guidance regarding health impacts to individuals pertaining to C-8,” he said March 28. “C-8 is not a regulated contaminant at this time. West Virginia relies on EPA's guidance to regulate the Safe Drinking Water Act. The Bureau for Public Health has been in contact with Vienna, Parkersburg and the EPA to evaluate the situation.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86002191&vname=dennotallissues&fn=86002191&jd=86002191
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California Adopts Diisocyanate Airborne Exposure Levels
Mar 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California's Office of Environmental Health Hazard Assessment adopted airborne concentrations of toluene diisocyanate and methylene diphenyl diisocyanate state regulators will use in assessing exposure risks for the two toxic contaminants.
The reference exposure levels, or RELs, are concentrations of the chemicals not expected to cause adverse non-cancer health effects for infrequent one-hour exposures, repeated eight-hour exposures and chronic, or long-term exposure, OEHHA said in a March 28 notice.
Toulene Diisocyanate
Toluene diisocyanate (TDI) is used in polyurethane foam products and adhesives, sealants and elastomers. A commercial form of the chemical (CAS No. 2647-62-5) is a mixture of 2,4-toluene diisocyanate (CAS No. 584-84-9) and 2,6-toluene diisocyanate (CAS No. 91-08-7).
California data from 2008 indicates 0.28 tons of TDI is released annually. Because the state updates it air toxic emissions inventory every four years, that figure may be underestimated, OEHHA said.
For TDI, the state agency adopted an acute (one hour) REL of 2 milligram per cubic meter of air (0.3 parts per billion); 8-hour REL of 0.015 ug/m3 (0.002 ppb); and chronic REL of 0.008 ug/m3 (0.001 ppb).
Exposure to TDI has been linked, in studies, to respiratory problems including sensory irritation, inflammation and asthma.
Methylene Diphenyl Diisocyanate
Most of the methylene diphenyl diisocyanate (CAS No. 101-68-8) consumed globally is used in polyurethane foams, but it also is used to prepare polyurethane resin and spandex fibers and to bond rubber to rayon and nylon. The commercial form of MDI (CAS No. 9016-87-9), called polymeric MDI, is used mostly in foaming operations.
A 2013 report from the California Air Resources Board estimated statewide facility emissions of MDI were 0.6 tons a year. Once again, OEHHA said those emissions may be underestimated.
The newly adopted acute REL for MDI is 12 ug/m3 (1.2 ppb). OEHHA adopted an 8-hour REL is 0.16 ug/m3 (0.015 ppb) and a chronic REL of 0.008 ug/m3 (0.008 ppb).
OEHHA said studies have found exposure to both types of MDI may cause the same type of respiratory problems as TDI.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86002188&vname=dennotallissues&fn=86002188&jd=86002188
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Campbell to Remove BPA Chemical From Its Cans by Mid-2017
Mar 28, 2016 | AP (In The New York Times)
Campbell Soup Co. will stop using the chemical Bisphenol A in its canned products by the middle of next year to reassure consumers worried that the substance may harm their health.
The pledge announced Monday is a response to concerns that the commonly used chemical known as BPA raises the risk of cancer, brain damage and hormonal problems.
The U.S. Food and Drug Administration maintains that BPA is safe at the current levels used in food.
After more than 40 years of using the chemical, Campbell still believes that BPA is among the world's safest packaging options.
Nevertheless, the Camden, New Jersey company began studying alternatives to BPA in 2012.
After extensive testing, Campbell says all its soups, gravies, Swanson broth and SpaghettiOs pasta are beginning to switch to cans without BPA linings.
About 75 percent of Campbell's soups will be sold in non-BPA cans by the end of this year, according to the company.
"Our priority throughout this transition has been, and will continue to be,food safety," said Mike Mulshine, Campbell's senior program manager of packaging.
In most instances, Campbell is trying to replace BPA with acrylic and polyester options.
Other manufacturers, including the makers of baby bottles, have been abandoning BPA, too.
http://www.nytimes.com/aponline/2016/03/28/business/ap-us-campbell-soup-can-change.html
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Scientists are Using Chemistry to FIght Off Counterfeit Coffee
Mar 29, 2016 | Washington Post
By Ryan F. Mandelbaum
You wait in line for your daily cup at your favorite coffee shop, like every morning. But today, something seems wrong with your precious, life-giving cup of joe. As the steam clouds your vision, you notice the familiar, nutty scent is tainted with hints of — what is that, a barnyard? And upon taking your first sip, instead of tasting the notes of “nectarine and chocolate” you were promised — bitter grass. Your coffee tastes like grass.
Robusta, you think. Drat.
The Robusta species of coffee bean (which, as its name suggests, is quite resilient to disease and adverse growing conditions) is cheaper than the complex Arabica bean, so the former is frequently used in instant coffee. In a study published earlier this month in the journal Food Chemistry, Italian researchers analyzed each bean — and came up with a chemical that could be used to tell the percentage of each species of bean in blends. The scientists think their method is cheaper than current blend identification methods, and could help brewers catch coffee traders who mislabel their blends — which is especially important given the rising popularity of specialty coffee among Americans.
“Unfortunately, man is bad,” said study co-author Luigi Servillo, researcher at the Second University of Naples in Naples, Italy. “And traders even more.” He suspected that enterprising coffee traders might be replacing some Arabica beans with Robusta beans to increase profits.
Servillo’s team prepared a mixture of each species of bean with formic acid and water, then passed it through a high-performance liquid chromatography(HPLC) instrument. Specific properties cause different coffee chemicals to move faster or slower through the instrument. The researchers use how quickly the chemical passes through a detector to determine what it's made of — like how you can tell whether you’re drinking soda or a milkshake based on how quickly it travels through the straw.
The group observed 20 times more homostachydrine (a harmless, naturally occurring chemical) in the Robusta beans than in the Arabica beans. They also noted that the chemical remained even after roasting. Servillo’s team was able to use the chemical to verify the percentage of each bean advertised in store-bought blends, like “100 percent Arabica” vs. “60 percent Arabica, 40 percent Robusta.”
Those extra Robusta beans can make a big difference in taste, at least according to some coffee fans. Arabica beans are sweeter and associated with complex coffee flavors, such as “floral” or “nutty” or any of the other adjectives your barista promises, said Molly Spencer, a UC Davis graduate student who helped create a coffee flavor wheel. Robusta has more caffeine, she said, so the beans taste bitter — with a less complex flavor.
Today, accurately advertising the percentage of each bean in a blend is important to many brewers and coffee shops, said Tracy Allen, the president of the Specialty Coffee Association of America. Americans know a lot more about coffee than they used to, and care about what’s in their cup.
“It used to be ‘coffee is coffee,’ ” said Allen, “but the specialty coffee movement has put the pressure on the importers” to advertise which beans are in a blend. And that might just tempt suppliers into fraudulent ratios.
While other chemicals can act as a coffee blend fingerprint, Servillo said his homostachydrine method is faster, easier, and uses cheaper equipment; all he had to do was take ground-up coffee, shake it up with acid, and put it into the HPLC instrument.
The team hasn’t patented its method, so anyone with a few thousand bucks, a computer and some lab goggles can try and use the process to hunt out counterfeit beans in the cupboard.
If brewers currently want to ensure a blend really contains the percentage of beans advertised, they’d need to learn to tell the difference based on the appearance and taste, said Allen. He thinks Servilo’s method is a promising way of letting anyone, not just coffee experts, detect fraudulent blends.
“Anything we do to empower people to make better decisions would be great,” he said.
https://www.washingtonpost.com/news/speaking-of-science/wp/2016/03/28/scientists-are-using-chemistry-to-fight-off-counterfeit-coffee/
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Defending ESPS, EPA Makes the Case for 'Beyond-The-Fence' Controls
Mar 28, 2016 | InsideEPA
By Lee Logan
EPA is offering its formal legal defense of its landmark greenhouse gas standards for existing power plants, countering a host of arguments from state and industry critics, including the critical question of whether the agency unlawfully expanded its authority by crafting standards based on actions “beyond the fence” of regulated power plants.
In a March 28 response brief filed on EPA's behalf, the Department of Justice (DOJ) argues that the Supreme Court in its 2011 ruling in American Electric Power (AEP) v. Connecticut, which preempted a common law claim against several major power companies, strongly endorsed the agency's use of Clean Air Act section 111(d) -- the section EPA relied on for the ESPS -- to regulate the plants' emissions.
The brief also makes a strong policy case for the agency's landmark existing source performance standards (ESPS) rule, which would curb power sector carbon dioxide emissions by 32 percent from 2005 levels by 2030. The rule “addresses the Nation’s most important and urgent environmental challenge,” the brief says, adding that opponents “seek to thwart any federal limitation of power plants’ voluminous CO2 emissions, or at least limit the scope to negligible requirements that would fail to address the threats presented and fall far short of what is cost-effectively achievable.”
The “beyond the fence” claim would not entirely block the ESPS, though it likely would severely “limit the scope” of the rule, as DOJ's brief claims. That is because the rule's standards are built on three “building blocks” -- improving coal plants' efficiencies, displacing coal power with gas generation and displacing fossil fuel generation with zero-emitting resources.
EPA's critics charge that only the first block is lawful, but the bulk of the rule's reductions stem from the second and third building blocks, meaning that if they were scrapped, the rule's ambition would be greatly diminished.
But DOJ's just-filed brief argues that the gas and renewables building blocks are lawful in part because they are “highly cost-effective, flexible, and proven emission-reduction strategies premised on increased utilization of cleaner forms of power generation.”
“These emission-reduction strategies -- which EPA terms 'generation-shifting' -- are not only already widely used but have been previously incorporated into numerous [Clean Air Act] regulatory programs for the power industry,” DOJ adds.
Although the “beyond the fence” concern is expected to be a dominant issue in the consolidated litigation in the U.S. Court of Appeals for the District of Columbia Circuit, West Virginia, et al. v. EPA, et al., the agency faces multiple other claims.
For example, critics in a Feb. 19 opening brief on “core” legal issues charge that the agency lacks threshold Clean Air Act authority for the ESPS, and that EPA intrudes on states' authority to set standards and unconstitutionally “commandeers” states into implementing the regulation.
And in a separate brief on “record-based and procedural” issues, the critics argue that the final ESPS violates administrative law because it is “radically” different than the proposed rule and that the agency has not shown its targets are “achievable.”
The opponents -- including a coalition of 27 states or state agencies led by West Virginia, and a wide variety of utility, coal and business groups -- also charge that the ESPS arbitrarily penalized some forms of zero-emitting resources like existing renewables and nuclear plants, and that EPA did not consider “particular” harms to certain states.
Heightened Importance
The D.C. Circuit's review of EPA's ESPS rule has taken on a heightened importance following the Supreme Court's Feb. 9 stay of the regulation and a vacancy on the court created by the sudden death of Justice Antonin Scalia just days later.
President Obama has since nominated D.C. Circuit Chief Judge Merrick Garland to fill the high court opening. The judge is considered by some observers a “moderate” on many issues, though he also has a record thatfavors deference to agency decisions and has been willing to back environmentalists' challenges to agency rules -- an approach that could bode well for EPA's defense of the ESPS if he is confirmed to the post.
However, Senate Republicans are promising to block the nomination, arguing the next president should fill the Supreme Court vacancy.
Amid the uncertain dynamic at the high court, DOJ's recent brief underscores the importance of the “beyond the fence” concern by outlining its arguments on that issue first and using about a third of its overall brief on the topic.
DOJ argues that the air act's requirement for EPA to set standards based on a “best system of emission reduction” (BSER) shows that “Congress was directing EPA to consider a wide range of measures to reduce emissions from sources.”
“In the case of power plants, those can include on-site technology-based control measures, but they can also include measures through which power plants reduce emissions by replacing higher-emitting generation with lower-emitting generation,” the brief says.
“Power plants are able to, and do, employ these same generation-shifting techniques to reduce CO2,” DOJ adds. “For example, a fossil-fuel-fired power plant may, through any of several methods, add zero-carbon renewable energy to the grid, which displaces generation elsewhere that is typically carbon-emitting.”
Further, DOJ notes that generation shifting was an “important component” of three “transport” rules addressing conventional pollutants.
The 2011 Cross-State Air Pollution Rule, for example, set statewide budgets for power sector emissions, and “based those budgets in part on the ability of plants to cost-effectively shift generation to lower-emitting plants.”
The brief adds that the acid rain program established in the air act explicitly acknowledged generation shifting as an available control strategy.
And in EPA's regulation limiting mercury hazardous air pollutants (HAPs) from the power sector, “EPA interpreted the phrase 'installation of controls' . . . to include the construction of cleaner replacement generation off-site for purposes of considering compliance extension requests.”
Further, the brief cites the Bush administration's rule to limit power sector mercury emissions using section 111(d) of the air law -- the same section EPA now relies on for its ESPS. That rule -- later vacated on other grounds -- identified a cap-and-trade system as part of BSER.
“Significantly, many of the Petitioners here strongly supported the [Bush-era] Mercury Rule. For example, in rulemaking comments, Petitioner Utility Air Regulatory Group (“UARG”) agreed 'that an interstate cap-and-trade program provides the ‘best system’ of mercury reduction for [power plants],'” DOJ says in its brief.
Chevron Deference
In the recent brief, DOJ also says that the statutory interpretation issues must be considered under the Supreme Court's Chevron precedent, which says that courts defer to agencies' reasonable interpretations of ambiguous statutes.
It argues that challengers wrongly say that Chevron does not apply. The Clean Air Act “clearly delegates to EPA authority to fill gaps in the Act concerning the appropriate amount of pollution reduction that should be obtained from long-regulated major pollution sources.”
DOJ adds that “if there were any doubt as to Chevron’s applicability, it has been removed by” the high court's 2011 ruling in AEP.
“That case addressed EPA’s authority to regulate the very same pollutant, under the very same provision, from the very same sources. The Court concluded that Congress had 'delegated to EPA the decision whether andhow to regulate [CO2] emissions from power plants' . . . Citing Chevron, the Court added that EPA is an 'altogether fitting' 'expert agency' 'best suited to serve as primary regulator of greenhouse gas emissions,'” DOJ says.
Further, the brief seeks to counter language from the high court's 2014 ruling in UARG v. EPA -- which limited the agency's GHG permitting program.
DOJ says that ruling does not apply because the agency is not “ignoring unambiguous statutory text” or sweeping “millions of new sources into the Act's regulatory coverage absent modifications of clear numerical thresholds” -- as the court ruled that the agency did in its tailoring rule for GHG permits.
“Instead, EPA is regulating [in the ESPS] the very largest CO2 polluters in the Nation, which have long been subject to extensive [air act] regulation and which the Supreme Court recognized in AEP were subject to Section 111(d) regulation. EPA is therefore not claiming any 'enormous and transformative expansion of power,'” DOJ says.
The latest brief offers a detailed response to critics' arguments in their opening briefs, though some issues have been raised in earlier briefing over whether the rule should be stayed and in separate litigation over the proposed version of the rule.
For example, the unsuccessful suits over the proposal focused largely on a claim that the rule is unlawful as a threshold matter because EPA is barred from regulating power plants under section 111 of the Clean Air Act because it already regulates plants' mercury emissions under section 112 -- and the law bars such dual regulation.
The section 111/112 issue is complicated because House and Senate amendments to section 111(d) were never reconciled in conference before the 1990 air act amendments were enacted. The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s “112 exclusion” to pollutants already regulated under that section.
The House amendment could be read as prohibiting the rule because it focuses on source categories, not pollutants. But EPA in the final ESPS interpreted the House amendment to only exclude the regulation of hazardous air pollutants under section 111(d) if already regulated under section 112, but not to preclude the regulation of other pollutants.
The agency's latest brief offers important arguments on that threshold issue, given that its earlier filings offered only a range of tentative responses to critics' claim and were unable to rely on EPA's formal determination of its section 111 authority that was contained in the final ESPS.
Among other arguments on the issue, DOJ says that opponents' interpretation would leave “a gaping hole in the Act's coverage,” and that such a hole cannot be squared with the overall purpose of the law.
A separate group of states, environmentalists and other parties that had intervened on the agency's behalf are scheduled to file their response briefs March 29. Groups that are filing amicus briefs in support of the agency must do so by April 1.
Briefing in the litigation is scheduled to conclude April 22, followed by oral argument June 2 and possibly June 3.
http://insideepa.com/daily-news/defending-esps-epa-makes-case-beyond-fence-controls
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A Big Week in Court for the Clean Power Plan: Defenders of the Historic Measure File Briefs
Mar 28, 2016 | Environmental Defense Fund
By Tomas Carbonell
This is a big week for those of us fighting to protect theClean Power Plan in court.
The U.S. Court of Appeals for the D.C. Circuit is preparing to hear arguments on the merits of the historic measure to reduce climate pollution and protect public health. Opponents are challenging the Environmental Protection Agency’s (EPA) plan, and they won an emergency stay from the Supreme Court – but no court has yet heard the case on its merits. The merits are being briefed now before the D.C. Circuit Court, which will hold oral argument on June 2nd.
Supporters of the Clean Power Plan file briefs with the D.C. Circuit Court this week.
EPA filed its response to challengers today, writing:
The [Clean Power Plan] will secure critically important reductions in carbon dioxide (“CO2”) emissions from what are by far the largest emitters in the United States—fossil-fuel-fired power plants. CO2 and other heat-trapping greenhouse-gas emissions pose a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time. These effects include rising sea levels that could flood coastal population centers; increasingly frequent and intense weather events such as storms, heat waves, and droughts; impaired air and water quality; shrinking water supplies; the spread of infectious disease; species extinction; and national security threats …
The Clean Air Act … provides the Environmental Protection Agency (“EPA”) well-established authority to abate threats to public health and welfare by limiting the amount of air pollution that power plants pump into the atmosphere. For decades, a host of CAA regulatory programs have limited various pollutants emitted by these plants …
This critically important Rule marks a significant step forward in addressing the Nation’s most urgent environmental threat. Fossil-fuel-fired power plants are, far and away, the largest stationary sources of CO2 pollution, and no meaningful effort to abate climate change can fail to address them. EPA’s authority and responsibility under Section 111(d) to control this pollution is well-established and was central to the Supreme Court’s holding in AEP that ‘the [CAA] and the EPA actions it authorizes displace any federal common-law right to seek abatement of [CO2] emissions from fossil-fuel fired power plants.’ 564 U.S. at 424. EPA has properly performed its Congressionally assigned task to limit this pollution …
The [Clean Power Plan] reflects the eminently reasonable exercise of EPA’s recognized statutory authority. It will achieve cost-effective CO2 reductions from an industry that has already demonstrated its ability to comply with robust pollution-control standards through the same measures and flexible approaches. The Rule fulfills both the letter and spirit of Congress’s direction in the Act, and the petitions should be denied. (Pages 1, 3 and 25; Read the full brief here)
Environmental Defense Fund is a party to the case and will file a brief in support of the Clean Power Plantomorrow, along with a broad and diverse coalition that includes numerous states, cities, power companies, clean energy companies, public health and medical associations, and environmental organizations.
A wide range of supporters will file amicus, or “friend of the court,” briefs on Friday, April 1st.
The Clean Power Plan
The U.S. Environmental Protection Agency (EPA) effort is the single biggest step America has ever taken to address the threat of climate change. It established the first-ever national limits on carbon pollution from fossil-fuel fired power plants.
Fossil fuel-fired power plants are the largest source of greenhouse gas emissions in the United States, accounting for almost 40 percent of the country’s carbon pollution. There is enormous potential for the power sector to reduce pollution by shifting to clean sources of energy – with immense attendant benefits for the health of our families and communities, for creating jobs and strengthening the American economy, and for safeguarding our planet for our children.
EPA estimates that by 2030, the Clean Power Plan will:Reduce carbon pollution from existing power plants 32 percent below 2005 levelsSave 3,600 lives annuallyPrevent 90,000 childhood asthma attacks annuallySave American families almost $85 on their annual energy bill
The standards not only have huge benefits, they are eminently achievable. On a national basis, the power sector has already reduced carbon pollution emissions by 15 percent since 2005, a faster rate of reduction than the Clean Power Plan requires.
The Clean Power Plan gives states extensive flexibility to forge pollution-reduction strategies tailored to their individual needs and economic opportunities. In fact, many states around the country – including some that are suing to stop it — are already well on their way towards meeting the emission limits set forth in the Clean Power Plan.
History of the Case
Opponents of the Clean Power Plan, including major emitters of harmful carbon pollution, started suing to stop it before EPA even finished writing it. (Various courts threw out those lawsuits).
Opponents unsuccessfully petitioned the D.C. Circuit Court for an emergency stay. After two months of briefing and weeks of careful review, a unanimous panel of the D.C. Circuit Court denied motions to stay the Clean Power Plan on January 21st of this year. The court also set an expedited schedule to hear lawsuits on its merits.
In a highly unusual decision, the Supreme Court then overruled the unanimous D.C. Circuit Court panel by a 5-to-4 vote, and granted an emergency stay of the Clean Power Plan. However, the Supreme Court’s order wasnot a decision on the merits of the case. It put the Clean Power Plan on pause, but it did not rule against it.
Leading legal experts have explained that the stay does not require EPA to stop all work related to the Clean Power Plan, nor does it require postponement of compliance deadlines – see this well-reasoned piece by New York University Law School dean emeritus Richard Revesz.
The Clean Power Plan Rests on a Solid Legal and Technical Foundation
EPA’s authority – and responsibility – to regulate carbon pollution from the power sector under the Clean Air Act is well-established.
The Supreme Court has affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act three times since 2007. In American Electric Power v. Connecticut (2011), the Supreme Court specifically held that section 111(d) of the Clean Air Act – the provision that underlies the Clean Power Plan – “speaks directly” to the regulation of carbon pollution from existing power plants.
This conclusion was, in fact, stated before the Supreme Court by attorneys for some of the nation’s largest power companies – who declared unequivocally at oral argument that EPA has authority to regulate carbon pollution from the power sector under section 111(d):
We believe that the EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111. – (Counsel for petitioners in AEP v. Connecticut)
As required by the Clean Air Act, EPA also exhaustively analyzed the Clean Power Plan to ensure that it is based on the best available technical information and will not compromise the affordable, reliable supply of electricity. EPA’s review of the millions of comments it received on every aspect of the proposed version of the Clean Power Plan has only strengthened the technical foundations of the final rule.
The Clean Power Plan Has Extraordinarily Broad Support
A broad and diverse group of entities has been standing up for the Clean Power Plan in court, and are expected to be among an even larger group filing this week. Some of these groups, including EDF, are parties to the case. Others will be filing as friends of the court.
The list of supporters includes:The National League of Cities, the U.S. Conference of Mayors, and the cities of Baltimore (MD),Coral Gables (FL), Grand Rapids (MI), Houston (TX), Jersey City (NJ), LosAngeles (CA),Minneapolis (MN), Portland (OR), Pinecrest (FL), Providence (RI), Salt Lake City (UT), San Francisco (CA), West Palm Beach (FL) and Boulder County (CO).
18 states and seven other cities – including New York, Chicago, and Philadelphia.Power Companies – including Calpine, National Grid Generation, Southern California Edison and the cities of Austin (TX) and Seattle (WA) which are engaging through their municipal power departments.
Leading medical and public health associations like the American Lung Association, the American Thoracic Society, and the American Medical Association.
The Institute for Policy Integrity at New York University Law School.
Two former EPA Administrators who served under Republican Presidents Nixon, Reagan and George H.W. Bush.
A number of former state energy and environmental regulators, including a former Chairman of the Federal Energy Regulatory Commission and former officials from several of the states whose attorney generals are challenging the rule.
A host of clean energy companies represented by Advanced Energy Economy and the national wind and solar associations, on behalf of America’s $200 billion clean energy industry.
States and Power Companies are Moving Ahead to Cut Dangerous Carbon Pollution
After the Supreme Court’s unprecedented decision to stay the Clean Power Plan, many states and power companies are continuing to expeditiously move forward with compliance planning and stakeholder engagement.
More than twenty states across the country – both states that oppose the Clean Power Plan and states that are strongly supportive — have indicated they are going to continue forward with the specifics of compliance planning, or have indicated they will stay on course to meet emissions reductions obligations. For example:
Colorado’s Department of Public Health and Environment said:
[I]it is prudent… to move forward during the litigation to ensure that the state is not left at a disadvantage… because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.
New Mexico’s Environment Secretary Ryan Flynn said in a statement:
[D]espite capricious political winds, the New Mexico Environment Department remains committed to taking meaningful action to reduce greenhouse gases by a projected 5.7 million tons by the end of 2017.
South Carolina has also indicated it expects to continue work to decarbonize the state's power industry, an effort which began two years ago.
Power companies across the country echo these sentiments, with many clearly recognizing that it is high-risk strategy for states to put down their pencils. In addition to creating unnecessary regulatory risk for companies making investment decisions, many companies are committed to moving forward with emissions reduction strategies.
American Electric Power, an electricity provider and one of the country’s top coal users, says the court case:
[D]oesn’t change our focus on the diversification of our generation fleet, [and] those diversification plans include more natural gas and renewables.
The many and diverse supporters of the Clean Power Plan recognize that climate change is a threat to all of us, and that we must take action to address that threat. Allowing power plants to discharge unlimited amounts of carbon pollution into our air is a clear and present danger to public health, the environment and our economy, and we cannot allow it to continue. EDF is proud to be part of this vibrant group of supporters.
http://blogs.edf.org/climate411/?_ga=1.157974770.918768490.1456939137
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Drilling Is Making Oklahoma as Quake Prone as California
Mar 28, 2016 | New York Times
By Michael Wines
Californians have lived with the risk of a damaging earthquake for centuries. Now Oklahomans, and some Kansans, face the same threat, federal seismologists said on Monday.
In an assessment released by the United States Geological Survey, experts said the chance of a destructive temblor in the next year is as great in parts of north-central Oklahoma and southern Kansas — where oil-and-gas operations have set off man-made quakes for about five years — as it is in the shakiest parts of quake-prone California.
The warning came in the agency’s map of earthquake risks, a document that for the first time included the prospects for human-caused quakes.
“By including human-induced events, our assessment of earthquake hazards has significantly increased in parts of the U.S.,” Mark Petersen, the chief of the agency’s Natural Seismic Hazard Mapping Project, said in a news release.
Four other states where waste disposal has led to human-induced quakes — Texas, Colorado, New Mexico and Arkansas — face considerably smaller risks of damaging tremors, the agency said. About seven million people live in the areas at risk of a human-induced earthquake, most of them in Oklahoma and Texas.
Over the last 15 years, those states have experienced an explosion in oil and gas production, which releases huge amounts of toxic wastewater. That wastewater is disposed of by re-injecting it into the ground, into rock formations thousands of feet below the surface, increasing the pressure on existing subterranean faults, and causing them to slip and produce tremors.
Along with the economic boom from oil and gas exploration, Oklahoma has experienced a rising number of earthquakes. In an average year, Oklahoma has historically had fewer than two quakes of magnitude 3 or greater — roughly the level at which a tremor can be felt. Kansas has had even fewer such shocks. But last year, Oklahoma recorded 907 quakes at magnitude 3 and above, and Kansas registered 54.
Oklahoma now ranks behind only Alaska in earthquake frequency, followed by California.
Three of the quakes this year, measured at magnitudes of 4.7, 4.8 and 5.1, were among the largest in Oklahoma’s history.
Including Oklahoma and southern Kansas on the map reinforces what the Geological Survey’s scientists have said for some time: The huge number of small, human-caused quakes in the two states may have set the stage for a larger, more destructive one.
The area of greatest risk, the agency stated, is a swath of rural land along the Oklahoma-Kansas border that has been repeatedly rocked by tremors. Because the area is thinly populated, damage has so far has been limited.
The assessment said that in that area, there is a 5 to 12 percent chance of a level six earthquake on the Mercalli index of intensity, which rates the potential for damage. Level six indicates a strong earthquake that is widely felt, but that does not cause much damage. Level seven can cause moderate damage in ordinary buildings and considerable damage in lesser ones.
But the area of risk also extends through the central part of the state toward Oklahoma City, where the rate of quakes has recently dropped. Experts estimated the one-year risk there at between 5 and 10 percent.
Twenty other sites in the eastern and central United States have also experienced human-induced quakes, the agency said, but the threat of larger quakes in these areas is small, the agency said.
The Geological Survey emphasized that earthquake prediction was an uncertain science, and that some studies suggested that the maximum magnitude of human-induced quakes was less than that of natural ones.
Much of the region’s boom in oil and gas production comes from wells that employ hydraulic fracturing of shale deep in the earth, a process commonly called fracking. But the scientists said those wells likely are responsible for only a tiny share of quakes; fracking-related earthquakes typically are too small to be felt.
In both Oklahoma and Kansas, some of the tremors over the last five years have rivaled the largest in their histories.
This year, Oklahoma has recorded more than 160 quakes with a magnitude of 3 or more. But the pace appears to have slowed after the state’s oil and gas regulator, the Oklahoma Corporation Commission, effectively imposed steep reductions in underground waste disposal in February and March.
Earthquake scientists have nevertheless warned that the risk of a larger quake does not necessarily drop in lock step with a decline in smaller ones. The forces that have been loosed underground, they say, can take years to sort themselves out.
The Geological Survey report also said the chances of a damaging natural earthquake had risen in some parts of the United States. Scientists noted an increase in the number of small tremors along the New Madrid fault, near Memphis, which in the early 1800s was the site of one of the nation’s largest earthquakes. The increase in tremors there has slightly raised the prospects of a larger quake, the scientists said.
http://www.nytimes.com/2016/03/29/us/earthquake-risk-in-oklahoma-and-kansas-comparable-to-california.html
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GAO: EPA Lacks Aquifer Data on Wastewater Injections
Mar 28, 2016 | PoliticoPro - Whiteboard
By Annie Snider
EPA doesn't have enough information to know whether drinking water aquifers are being sufficiently protected from injections of oil and gas wastewater and other materials, according to a government watchdog.
A report from the Government Accountability Office found that the data EPA is collecting from states on well inspections is not specific enough, and that the agency does not have enough information on aquifers that have been exempt from regulation under the Safe Drinking Water Act because they are deemed poor sources of drinking water. Without this information, GAO said that EPA cannot say whether states and its own regional offices are fully protecting drinking water sources.
The report comes after California last year acknowledged it had for decades been improperly approving injection of wastewater into aquifers that should have been protected.
That case and others "illustrate that EPA does not have the information, or consistently conduct the oversight activities, needed to assess state Underground Sources of Drinking Water and EPA-managed class II programs to help ensure that they protect underground sources of drinking water," the report states.
Last week, environmental groups petitioned EPA to end the aquifer exemption program, arguing that those aquifers could become vital sources of drinking water as drought and growing demand increase competition for water in the West.
The agency generally agreed with the report's conclusions, but does not plan to require well-specific information or study whether it needs to hire more staff to manage the program.
https://www.politicopro.com/energy/whiteboard
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Keeping My Fossil Fuel in the Ground
Mar 29, 2016 | New York Times
By Terry Tempest Williams
My husband, Brooke Williams, and I recently bought leasing rights to 1,120 acres of federal public lands near our home in Utah. The lease gives us the right to drill for oil or natural gas. We paid $1,680 for it, plus a $820 processing fee.
We put it on our credit card.
I hadn’t planned on leasing these lands when I attended an auction run by the federal Bureau of Land Management, a government agency that manages hundreds of millions of acres of public land across the West. I was there to protest the leasing of these lands to oil and gas companies planning to drill for fossil fuels.
But I ended up in the shorter line to get into the auction, the one for people registering as bidders. So I signed a registration form and was given the number 19. I followed the other bidders inside and found a seat in the front row.
My husband entered with the protesters, who were assigned to a separate space set aside for them.
As people filed in, a B.L.M. agent approached me and asked, “Are you aware that if you have misrepresented yourself as a legitimate bidder with an energy company you will be prosecuted and you could go to prison?”
His tone moved from inquiry to intimidation to harassment. “I am asking you, are you aware … ”
I said I was aware of what happened to Tim DeChristopher, who attended a similar auction in 2008, where he bid up prices and ended up with 22,000 acres, worth nearly $1.8 million that he had no intention of paying for. He was doing it to protest the auction. He was sentenced to two years in federal prison on felony counts of interfering with the auction and making false representations.
“As an American citizen,” I told the agent, “I have a right to be here and witness this auction and decide if I am going to bid or not on these leases on our public lands, correct?”
“I am saying, if you choose to misrepresent yourself … ”
“But I have this right … ”
“What energy do you plan to develop?”
“You can’t define energy for us. Our energy development is fueling a movement to keep it in the ground.”
“You will be prosecuted if … ”
We were interrupted as the auction began. Parcel after parcel was sold to the rhythmic bantering of the auctioneer until voices in the back of the room began singing, “People got to rise like water … ”
The singing became louder and louder until the bidders could no longer hear the auctioneer. The auction stopped. The protesters were told to be quiet. They kept singing. They were asked again. They sat down. The auction continued.
“Two dollars, two dollars, do I hear 2.25, I hear 2.25, 2.50, 3, 4, 5, are you in, are you out, do I hear 5, I hear 5, do I hear 6, 6 dollars, do I hear 7, 7. Sold! Bidder No. 14. ”
And so it went.
Then the protesters began to sing again. This time, they were escorted out by the police. They offered up words of protest as they departed, ending with “Keep it in the ground!”
The doors were closed. The auction continued as the singing of protesters echoed from the stairwell.
“Come on, men, are you in, are you out, or are you stayin’ home — this is a lot of scenery going to waste,” the auctioneer joked when no one bid on a parcel.
As the auction closed, we were told that if we wished to lease parcels that had not been sold, we could go to the B.L.M. office and purchase them “over the counter” at a discounted price. Call it a fire sale.
Which is exactly what my husband and I did. We were interested in buying leases within the county where we live specifically, on land where oil and gas exploration might threaten sage grouse, prairie dogs and other wildlife. We met the qualification: We’re adult citizens of the United States.
With maps stretched out before us, we found what we were looking for. The $2-per-acre base price had been reduced to $1.50. We took out our credit card, and sealed the deal. The land sits adjacent to a proposed wilderness area. When we visited, we were struck by its hard-edge beauty and castle-like topography.
We have every intention of complying with the law, even as we challenge it. To establish overselves as a legitimate energy company, we have formed Tempest Exploration Company, LLC. We will pay the annual rent for the duration of the 10-year lease and keep whatever oil and gas lies beneath these lands in the ground.
Those resources will remain there until science finds a way to use those fossil fuels in sustainable, nonpolluting ways. After 10 years, we will lose our lease if we haven’t drilled.
We’re not suggesting that everyone who feels as we do about the exploitation of our public lands should do what we did. We aren’t going to be able to buy our way out of this problem. Our purchase was more or less spontaneous, done with a coyote’s grin, to shine a light on the auctioning away of America’s public lands to extract the very fossil fuels that are warming our planet and pushing us toward climate disaster.
Out here in the Utah desert, we are hoping to tap into the energy that is powering the movement to keep fossil fuels in the ground. Some 32 million acres of lands managed by B.L.M. have already been leased to energy companies to drill for oil and gas, even as some climate scientists tell us the world needs to keep most fossil fuels in the ground to avert a catastrophic future of runaway global warming.
The energy we hope to produce through Tempest Exploration is not the kind that will destroy our planet, but the kind that will fuel moral imagination. We need to harness this spiritual and political energy to sustain the planet we call home.
Terry Tempest Williams is the author of the forthcoming book, “The Hour of Land: A Personal Topography of America’s National Parks.”
http://www.nytimes.com/2016/03/29/opinion/keeping-my-fossil-fuel-in-the-ground.html
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Legacy Producers Sue to Stop New Oil/Gas Regulations in Pennsylvania
Mar 29, 2016 | Natural Gas Intelligence
By Jamison Cocklin
A trade group representing Pennsylvania's legacy oil and natural gas producers has filed a lawsuit against the state Department of Environmental Protection (DEP) to stop a package of new regulations that it claims would put many of its members out of business.
The Pennsylvania Independent Petroleum Producers Association (PIPP) filed the complaint last week in the Commonwealth Court. It alleges that the agency violated a state law passed in 2014 by failing to craft regulations for conventional oil and gas wells separately from those governing unconventional gas wells. PIPP's members, the organization said, would be subjected to the same rules as "billion-dollar, multinational corporations engaged in large-scale, unconventional drilling for natural gas."
"The proposed regulations as written are illegal and would spell the end of a 155 year-old legacy in Pennsylvania," said PIPP President Mark Cline. "As a regulated industry, we are required to obey the laws of our commonwealth. The responsibilities of the DEP and other regulating agencies are no different. No one is above the law, nor can [DEP] pick and choose what laws to abide by."
After more than four years of working on the rulemaking package, DEP sent the new regulations to the state's Environmental Quality Board (EQB) in January (see Shale Daily, Jan. 6). The EQB approved them, and the regulations are scheduled for a hearing before the Independent Regulatory Review Commission next month. The package would provide better protections for and improve water resources, public resources, public health/safety, landowner concerns, and transparency and data management.
The rulemaking includes separate regulations for the conventional and unconventional industries. The DEP hosted 12 public hearings and received 28,000 public comments during the rulemaking process. The agency, which does not comment on litigation, has continued to maintain that the rules were crafted transparently and are fair and balanced.
Throughout the process, however, conventional producers and the trade organizations that represent them have accused the agency of simply layering on ambiguous regulations for both industries. In 2014, the general assembly passed a bill that required the DEP to adopt separate regulations for the conventional and unconventional industries (see Shale Daily, June 27, 2014). Act 126 was aimed at shielding legacy producers from the financial burdens of the regulatory update, which was primarily undertaken in response to shale drillers operating in the state.
The lawsuit seeks a declaration from the court that the new regulations are unlawful and unenforceable and requests that the IRRC hearing be enjoined until the court can issue a ruling. It also requests that the DEP start again with the conventional rulemaking process in accordance with the 2014 law.
Based in Northwest Pennsylvania, PIPP represents more than 350 small producers and supply companies. After the lawsuit was filed, Pennsylvania Independent Oil and Gas Association (PIOGA) President Lou D'Amico said the organization "fully supports every feasible effort to stop the [DEP] from enforcing regulations intended for unconventional oil and natural gas production on small, independent producers drilling conventional wells.
"The association has stated since the enactment of Act 126 that the process of promulgating these regulations was illegal, and that they would be an unnecessary and costly burden on the state's traditional oil and gas producers."
PIOGA also worked with legislators to include a provision in the state's fiscal code that would have required the state to start over on the conventional rules. Gov. Tom Wolf has twice vetoed that amendment, saying it would hurt environmental protections.
While the regulations contain separate rules for both industries, conventional and unconventional producers would still be required to adhere to some of the same rules. Oil and gas wells near scenic river corridors, parks, forests, schools and playgrounds would receive closer regulatory scrutiny, along with other areas deemed resource protections zones. All operators would be required to conduct reviews of abandoned and active wells near their pads prior to drilling, and they would be required to develop a monitoring plan to address such risks.
The rules also establish stronger water supply restoration standards and enhanced spill reporting and cleanup requirements for both industries. When the DEP sent the final regulations to the EQB in January, officials said they anticipated legal challenges from the industry.
PIOGA has also filed a lawsuit challenging DEP's requirement that operators identify impacts to public resources and wildlife in their permit applications (see Shale Daily, Jan. 7).
http://www.naturalgasintel.com/articles/105842-legacy-producers-sue-to-stop-new-oilgas-regulations-in-pennsylvania
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Industry Seeks Comment Extension for Pipeline Rule
Mar 29, 2016 | BNA Daily Environment Report
The Transportation Department should extend the 60-day comment period for its recently proposed rule for new pipeline safety requirements, the American Petroleum Institute, American Gas Association and other trade groups wrote in a letter made public March 28. “On account of the length and complexity of the proposed revisions to the existing regulations, we will need additional time to review and provide responsive comments,” the groups wrote in a letter to the Pipeline and Hazardous Materials Safety Administration. “The agency is proposing to modify approximately 47 sections of the regulations, which will affect the design, construction, maintenance, operations and integrity management programs for gas transmission and gathering pipelines,” the groups said in the letter. The rule, which would require assessment and repair of 30,000 additional miles of pipeline, is estimated by the agency to cost companies up to $47 million per year, a figure that industry has said is too low. The letter is available at http://src.bna.com/dER.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86002193&vname=dennotallissues&fn=86002193&jd=86002193
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EPA Sends Ozone & PM Air Screening Guide for OMB Review
Mar 28, 2016 | InsideEPA
EPA March 25 sent for White House Office of Management and Budget (OMB) pre-publication review a new guidance document advising air regulators on how to use screening tools known as “significant impact levels” (SILs) to streamline permitting of industrial sources under the agency's ozone and fine particulate matter (PM2.5) air standards.
SILs are threshold levels of pollution below which a source's projected air pollution is considered de minimisand assumed not to threaten an area's attainment of national ambient air quality standards (NAAQS). If a source's projected emissions are below the significance thresholds, further air quality modeling is not required to obtain a permit.
New sources and those undergoing major modifications must ensure they do not cause NAAQS violations, and SILs and similar screening tools enable industry and regulators to swiftly determine compliance.
Industry attorneys have recently complained that EPA does not have such measures in place to ease implementation of its 2015 ozone NAAQS, set at 70 parts per billion (ppb), tougher than the prior level of 75 ppb set in 2008. While states have years to craft implementation plans outlining measures they will take to comply, industry must comply with the new NAAQS immediately in crafting air permits for projects.
The guidance undergoing OMB review would apply to SILs for prevention of significant deterioration (PSD) air permits, which are required for sources in areas in attainment with NAAQS, for both ozone and PM2.5 NAAQS. The guidance is not listed in EPA's Unified Agenda, nor in the agency's Rulemaking Gateway of pending regulations, so further details on the contents of the guide were unavailable at press time.
However, EPA on its Rulemaking Gateway does list a forthcoming proposed regulation to set SILs for both ozone and PM2.5, with no projected publication date now listed.
In its Action Initiation List of rulemakings commenced in May, EPA also listed a forthcoming regulatory proposal to set SILs for ozone for use in PSD permitting, with a projected publication date of “more than 12 months.”
An EPA spokeswoman says, "The subject matter of the draft SILs guidance is similar to the subject matter in the listed rulemaking. At this time we do not have a specific schedule for the proposed rulemaking."
Any eventual regulation setting new SILs for PM2.5 would likely address the U.S. Court of Appeals for the District of Columbia Circuit's January 2013 ruling in Sierra Club v. EPA that remanded existing SILs for PM2.5 to the agency. The court also vacated entirely a similar screening tool, known as the Significant Monitoring Concentration, on the grounds that it was inconsistent with the Clean Air Act.
Sierra Club opposed the screening tools because it says that assuming sources emitting below de minimisthresholds do not threaten NAAQS attainment is inherently unreliable and can result in NAAQS violations, and wrongly exempts industry from air law requirements.
Editor's Note: This blog has been udpated to include EPA's response.
http://insideepa.com/the-inside-story
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