Preview Newsletter
AM ACC 5/10/2016
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(ACC Mentioned) Yokogawa Corporation of America Joins American Chemical Council as Affiliate Member
May 9, 2016 | Automation World
ACC affiliate members consist of the chemical industry’s value chain partners and are not chemical manufacturers. Affiliate membership requires participation in an approved environment, health, safety, and security performance program. -
(ACC Mentioned) No Special Concerns in US at Upcoming CDR
May 10, 2016 | Chemical Watch
By Sylvia Palmer
With less than a month to the start of the 2016 submission period for the US EPA Chemical Data Reporting (CDR) Rule, indications are this year's reporting obligations are set to go smoothly. -
Boxer: Toxic Substances Deal Gives More Room to States
May 9, 2016 | Morning Consult
By Jack Fitzpatrick
Sen. Barbara Boxer (D-Calif.) and Sen. Jim Inhofe (R-Okla.) have reached a deal on overhauling the Toxic Substances Control Act, giving more leeway to state agencies that regulate chemicals, Boxer told reporters Monday. -
Boxer 'Very Happy' About TSCA Changes, But More Work Ahead
May 10, 2016 | E&E Daily
By Sam Pearson
An agreement last week between Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) and the panel's ranking member, Sen. Barbara Boxer (D-Calif.), did not resolve all the impediments to passing pending... -
Will New Toxics Law Keep Chemical Industry’s Dirty Secrets?
May 9, 2016 | Environmental Working Group
By Melanie Benesh
In lab testing, one chemical, we’ll call it “chemical X,” was linked to decreased fertility and changes in the lungs, spleen, stomach, intestines and vagina; and in some cases even death. -
Washington Post Looks at the Long and Painful History of Lead in Drinking Water Rule
May 10, 2016 | Environmental Defense Fund
By Sarah Vogel
If you missed last week’s Washington Post piece, “The EPA’s lead-in-water rule has been faulted for decades. Will Flint hasten a change?” we suggest you go back and take a look. Post reporter Brady Dennis takes us back... -
Crises Like Flint are Inevitable When Politicians and Industries Insist on Playing with Matches
May 9, 2016 | Quartz
By Mary Heather Noble
Years ago, I worked as an environmental regulator. The site was a former machining facility perched on a hill with a slug of solvent underfoot. The community in which it was located was a working-class New England town... -
Offering a Safer Choice is a Good Choice for Business
May 9, 2016 | Environmental Defense Fund
By Michelle Mauthe Harvey
With so many vague claims and misleading labels on products in the marketplace, it’s no surprise that consumers are increasingly calling for safer products and greater transparency with regard to product ingredients. -
US EPA Hosts Workshop on Exposure Science
May 10, 2016 | Chemical Watch
The US EPA's Office of Research and Development is hosting a workshop on Aggregate Exposure Pathways (AEP) on 9-11 May. -
Energy and Water Spending Bill Blocked a Third Time
May 9, 2016 | PoliticoPro - Whiteboard
By Darius Dixon
Senate Democrats today blocked the energy and water spending bill for the third time in as many weeks to prevent a potential vote on an amendment related to the Iran nuclear deal. -
State UIC Program Peer Review May Help Address EPA Oversight Concerns
May 9, 2016 | InsideEPA
By Bridget DiCosmo
The Ground Water Protection Council's (GWPC) just-completed peer review of Nebraska's underground injection control (UIC) permit program for oil and gas wastewater under delegated Safe Drinking Water Act Class II... -
Driven By NatGas, 2015 CO2 Emissions 12% Below 2005 Levels, Says EIA
May 9, 2016 | Natural Gas Intelligence
By Jeremiah Shelor
Energy-related carbon dioxide (CO2) emissions in the United States decreased in 2015 and were 12% below 2005 levels, according to a note published Monday by the Energy Information Administration (EIA). -
DOJ: High Court Shouldn't Revisit Power Plant Mercury Rule
May 10, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court should deny a request by 20 states to review a lower court's decision to leave the Mercury and Air Toxics Standards in place because the states lack standing and because a recent Environmental Protection Agency... -
Kansas Bill Suspends Work on EPA's Clean Power Plan
May 10, 2016 | BNA Daily Environment Report
By Christopher Brown
Kansas missed an “economic and moral” opportunity to address climate change after Gov. Sam Brownback (R) signed a bill halting the state's work on implementing federal carbon dioxide standards for power plants... -
U.S. Utilities Boost Investments in Wind, Solar Power
May 9, 2016 | Wall Street Journal
By Cassandra Sweet
Large U.S. utilities are taking advantage of government subsidies to buy and produce more renewable energy in anticipation of tougher new regulations on carbon emissions. -
EPA Rejects House Plea to Extend Chemical Security Outreach
May 10, 2016 | BNA Daily Environment Report
By Brian Dabbs
A set of top House Republicans, led by Energy and Commerce Chairman Fred Upton (R-Mich.), pushed the EPA on May 6 for a 30-day extension of its comment period for the contested chemical security proposal, but the agency dismissed that as unnecessary. -
Cyberattack or Cyberwar? Senator Seeks Clarity
May 10, 2016 | E&E Daily
By Blake Sobczak
A South Dakota senator is pressing the Obama administration to clear up its cyberwar policy as hackers take aim at critical infrastructure. -
Nation's Pipelines Increasingly at Risk of Cyber, Physical Attacks
May 9, 2016 | Homeland Security Today
By Belle Hillenburg
The recent attacks in Brussels--the deadliest acts of terrorism in Belgium's history--revealed the increasing complexity of securing against global terrorist threats. In the United States, there are over 2.5 million miles of pipeline... -
Conservatives Press Congress To Overhaul NAAQS Process
May 9, 2016 | InsideEPA
A broad coalition of conservative groups is urging House and Senate lawmakers to advance legislation that would overhaul EPA's process for setting national ambient air quality standards (NAAQS)... -
White House Reviewing EPA's Particulate Regs
May 9, 2016 | E&E News PM
By Sean Reilly
More than a year after unveiling its original draft, U.S. EPA has wrapped up work on the final version of requirements for state and local air agencies to comply with the 2012 fine particulate matter standard. -
Agreeing to Dismiss Water Suits Preserves Refiling Rights
May 10, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
Industry and environmental groups are preserving their right to challenge the Clean Water Rule by either voluntarily seeking to withdraw their complaints filed in federal district courts or not opposing others' motions to dismiss... -
Earth Day Irony
May 9, 2016 | The Hill - Congress Blog
By Russell A. Davidson
As the U.S. Senate passed its long-delayed energy bill April 21, the irony was acute. Here was the world’s greatest deliberative body voting to kill carbon-cutting requirements for the federal government... -
In Novel Tactic on Climate Change, Citizens Sue Their Governments
May 10, 2016 | New York Times
By John Schwartz
Global warming is already disrupting the planet’s weather. Now it is having an impact on the courts, as well, as adults and children around the world try to enlist the judiciary in their efforts to blunt climate change.
Industry and Association News
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(ACC Mentioned) Yokogawa Corporation of America Joins American Chemical Council as Affiliate Member
May 9, 2016 | Automation World
Yokogawa Corporation of America has been approved as an affiliate member by the Board of Directors for the American Chemical Council (ACC). The ACC is America’s oldest trade association of its kind, representing companies engaged in the business of chemistry.
“ACC had a strong year of growth in 2015 and continues to add to that with the addition of these new members,” said ACC President and CEO Cal Dooley. “As our membership expands, ACC continues to strengthen its position as the leading voice of the chemical industry throughout the value chain.”
ACC affiliate members consist of the chemical industry’s value chain partners and are not chemical manufacturers. Affiliate membership requires participation in an approved environment, health, safety, and security performance program. Yokogawa has OHSAS 18001 and ISO 14001 certifications.
“We are excited to strenghten our relationship with the ACC as an affiliate member,” said Daniel Duncan, President and CEO of Yokogawa Corporation of America. “We look forward to exchanging ideas, strengthening ties with chemical manufacturers, and delivering increased value in operational excellence, capital expenditure efficiency, and lifecycle sustainability as a leading automation supplier.”
Yokogawa is the number one leading global supplier of distributed controls systems and process safety systems to chemical manufacturers. As an ACC affiliate member, Yokogawa will gain access to market intelligence, networking opportunities, a forum for education, and a venue to work collaboratively with ACC on mutual advocacy issues. The council’s mission is to deliver business value through exceptional advocacy, and to foster a regulatory and marketplace environment that allows members to innovate, expand, and efficiently create products that respond to consumer demand. The ACC aims to promote and protect the business of chemistry’s leadership in driving innovation, creating jobs, and enhancing safety in performance, processes and products.
http://www.automationworld.com/yokogawa-corporation-america-joins-american-chemical-council-affiliate-member
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(ACC Mentioned) No Special Concerns in US at Upcoming CDR
May 10, 2016 | Chemical Watch
By Sylvia Palmer
With less than a month to the start of the 2016 submission period for the US EPA Chemical Data Reporting (CDR) Rule, indications are this year's reporting obligations are set to go smoothly. Industry has not yet expressed any significant concerns.
The submission period – which happens every four years – runs from 1 June to 30 September.
The CDR rule is part of the Toxic Substances Control Act (TSCA). It requires manufacturers and importers to report information on the production and use of chemicals in commerce.
The requirement generally applies to 25,000lbs or more of a chemical substance at any single site. However, for 2016, a new reduced reporting threshold of 2,500lbs applies to chemical substances subject to certain TSCA actions.
According to Dan Newton, senior manager of government relations at the Society of Chemical Manufacturers and Affiliates (Socma), these lower thresholds "will cause the CDR rule to apply to many more companies, including smaller companies, than previously."
"It will also increase the reporting burden for companies who were previously covered," he says.EPA support
The EPA is providing webinar outreach sessions to help companies understand the CDR reporting and guide them through the submission process. These have been "very helpful, especially given the new requirements," says Mr Newton.
The agency is also providing guidance materials to better explain CDR requirements on specific issues. They will also encourage companies to submit questions and comments to a CDR inbox on the agency's website.
"In most Socma member companies, the same individual(s) is responsible for many different functions including complying with the CDR rule, so all of EPA's outreach is appreciated," says Mr Newton.
All companies must submit data electronically using e-CDRweb, a CDR web-based reporting tool, through the agency’s electronic reporting site: the central data exchange (CDX).
Despite similar types of outreach from the EPA leading up to the previous CDR reporting period in 2012, companies encountered "significant ongoing issues". These were related to the e-CDRweb and the CDX, according to a 2012 letter from the American Chemistry Council (ACC).
These issues included:
· issues with validation for CDX registration, resulting in 2-3 week delays to receive paper validation;
· CDX system freezes and restarts, likely due to heavy system activity;
· problems with browser settings and needing to obtain newer versions of web browsers; and
· error messages during attempts to validate form U submissions in e-CDRweb.
In response to industry concerns, the agency granted a 90-day extension to the reporting deadline.
Following the 2012 reporting period, the agency said it would take advantage of the experience to make further improvements to the reporting system. Companies cautioned the EPA not to make changes to the CDX too close to the 2016 reporting deadline.
But with just weeks to the start of the reporting period, significant concerns like those that arose in 2012 have not yet been voiced.
The EPA uses CDR data to support:
· risk screening;
· assessment;
· priority setting; and
· management activities.
It allows the agency to construct an in-depth picture of the types, amount, end uses, and possible exposure to chemicals in commerce.
https://chemicalwatch.com/47199/no-special-concerns-in-us-at-upcoming-cdr
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Boxer: Toxic Substances Deal Gives More Room to States
May 9, 2016 | Morning Consult
By Jack Fitzpatrick
Sen. Barbara Boxer (D-Calif.) and Sen. Jim Inhofe (R-Okla.) have reached a deal on overhauling the Toxic Substances Control Act, giving more leeway to state agencies that regulate chemicals, Boxer told reporters Monday.
Inhofe and Boxer, the chair and ranking Democrat on the Senate Environment and Public Works Committee, respectively, released a statement on Friday announcing a deal on “key sticking points” on a bill that gives the Environmental Protection Agency a greater ability to regulate dangerous chemicals. Boxer clarified Monday that the deal was made on a provision that would have blocked states from regulating chemicals that the EPA has chosen not to regulate.
Boxer said she was “thrilled” with the deal, and that California state regulators “are very happy with it.” But she warned that other differences between the Senate and House bills on TSCA still have to be ironed out. The House passed its bill in June 2015 by a 398-1 vote, and the Senate passed its bill in December by a voice vote.
“We just did a huge change on ‘pre-emption,’ and that’s what we agreed with,” Boxer told reporters. “I haven’t looked at the rest of the bill because that has to be negotiated with the House.”
Inhofe told reporters Monday that, as of a week ago, there were not plans for a formal conference on the bills.
“I don’t think we need to do a conference,” he said. “When I left a week ago the answer had been because we were going to iron out the differences and then end up with a bill. In other words, they could send our bill back.”
The House and Senate bills both aim to reform a gap in the original 1976 bill, which calls for the EPA to regulate dangerous chemicals only if it can demonstrate they pose an “unreasonable risk.” That language of the bill set such a difficult standard that the EPA’s rule banning the distribution of asbestos was rejected by a federal court.
https://morningconsult.com/2016/05/boxer-toxic-substances-deal-gives-room-states/
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Boxer 'Very Happy' About TSCA Changes, But More Work Ahead
May 10, 2016 | E&E Daily
By Sam Pearson
An agreement last week between Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) and the panel's ranking member, Sen. Barbara Boxer (D-Calif.), did not resolve all the impediments to passing pending chemicals legislation, the lawmakers said yesterday.
Boxer told reporters the deal with Inhofe on the thorny issue of how state laws would be affected by changes to the Toxic Substances Control Act of 1976 had secured most of what California state agencies sought.
Boxer and Inhofe announced the agreement late Friday on changes to S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," after months of stalemate on the issue (E&E Daily, May 6). The House also passed its own proposal, H.R. 2576, or the "TSCA Modernization Act," last year.
Under the first bipartisan TSCA bill, which the late Sen. Frank Lautenberg (D-N.J.) and Sen. David Vitter (R-La.) introduced in 2013, states would have been broadly pre-empted under federal law. Those provisions have been narrowed in subsequent versions of the legislation, including with a blanket exemption in the Senate bill for California's Proposition 65 chemical review program. Remaining items of contention include how, or whether, states would be barred from taking action on chemicals that U.S. EPA has begun, but not completed, studying.
"My state will not be pre-empted in most of the bill now," Boxer said. "So they have time to act. It's a huge difference from where it was, so we're very happy."
Boxer credited the breakthrough to the negotiating efforts of Sen. Jeff Merkley (D-Ore.).
Though Boxer declined to provide specifics of the deal, she said Merkley "really helped."
"He had an idea, and we flew with it and went with it," Boxer said. "So we're thrilled about it. I can't give you the specifics, but I'm just saying, my state EPA is very happy with it, so we're thrilled."
Inhofe described Boxer's position somewhat differently. Inhofe said the bill had not changed much, in his view, from the most recent version released to the public.
"I haven't really seen a lot of change, except people are getting worn out and they're ready to do something," Inhofe said.
Though Inhofe described Boxer as "now on board," Boxer said she had not agreed to the entire proposal.
"I didn't endorse 'the bill,'" Boxer said. "What I said in the press release is, we've resolved the sticking points."
Those sticking points still must be negotiated with the House, Boxer said -- something Inhofe said staff were scheduled to begin yesterday.
http://www.eenews.net/eedaily/2016/05/10/stories/1060036961
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Will New Toxics Law Keep Chemical Industry’s Dirty Secrets?
May 9, 2016 | Environmental Working Group
By Melanie Benesh
In lab testing, one chemical, we’ll call it “chemical X,” was linked to decreased fertility and changes in the lungs, spleen, stomach, intestines and vagina; and in some cases even death.
Another chemical, “chemical Y,” was shown to lower the weight of fetuses, which could lead to later developmental health problems.
What chemicals caused these alarming effects? What products are they used in? Are they still on the market after such worrisome test results? Who makes them?
We don’t know. We may never know.
Why? Because federal chemical safety law allows companies to keep secret significant amounts of information about their chemicals, even if they could cause substantial harm.
In a 2009 exposé on chemical secrecy, EWG found that nearly two-thirds of all new chemicals produced since 1979 had been classified as trade secrets, including substances linked to cancer and hormone disruption. Within weeks of EWG’s report, the Environmental Protection Agency took modest steps to control the most blatant overuse of the confidentiality stamp, but secrecy claims remain rampant.
Today, EWG released an updated version of its report finding that seven years later, EPA has taken some positive steps – but not enough has changed.
On a positive note, EPA did revoke the trade secret status on nearly 650 chemical identities and has re-visited more than 20,000 other confidentiality claims. Also, far fewer chemicals used in children’s products are still being classified secret.
But these modest improvements don’t go far enough.
The very names of approximately 17,500 chemicals remain secret, including nearly two-thirds of the new chemicals produced since 1979. Even information about chemicals that may pose substantial health dangers – like the two mystery chemicals we’re calling X and Y – can be and often is kept secret.
Current law requires companies to inform EPA when their chemicals are shown to pose substantial risks. EPA must publish this information, but the companies can request that the company’s name, production volumes and even the chemical’s identity be kept secret. Half of the more than 250 “substantial risk” reports filed to EPA since October of last year masked the chemicals’ identity.
Keeping so much information secret undermines efforts to make chemicals safe and leaves the public in the dark about potentially risky products.
Congress is on the verge of updating the nation’s badly broken and ineffective federal chemical law, the Toxic Substances Control Act of 1976. Many changes will have to be made to the pending legislation for it to be better than current law, and one of the most critical is ensuring transparency. That means health and safety studies cannot be allowed to hide the identity of the chemicals, companies should have to renew and re-justify old trade secret claims and EPA should have broad authority to revisit, reassess and revoke trade secret claims whenever safety concerns arise.
It’s been 40 years since the outdated chemical safety law was passed. If Congress doesn’t get it right this time, we could be left in the dark for another 40 years.
http://www.ewg.org/enviroblog/2016/05/will-new-toxics-law-keep-chemical-industry-s-dirty-secrets
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Washington Post Looks at the Long and Painful History of Lead in Drinking Water Rule
May 10, 2016 | Environmental Defense Fund
By Sarah Vogel
If you missed last week’s Washington Post piece, “The EPA’s lead-in-water rule has been faulted for decades. Will Flint hasten a change?” we suggest you go back and take a look. Post reporter Brady Dennis takes us back to the beginning to figure out how a federal rule intended to help ensure safe drinking water nationwide faltered, and why it has taken so long to fix.
In 1991, EPA issued the Lead and Copper Rule to reduce lead in drinking water that primarily relied on corrosion control. But initial progress stalled and the rules shortcomings became clear. As EPA Administrator Gina McCarthy explained at a recent hearing, the rule “needs to be strengthened.” Critics claim the outdated rule has become too easy to evade and too hard to enforce.
EPA now is developing an overhaul of the rule. Given the complexity and scope of the challenge, as my colleagueTom Neltner points out, the stakes are high and the agency needs to get it right.
Neltner should know. He served on the expert panel advising the EPA National Drinking Water Advisory Council(NDWAC) which looked at the rule’s flaws. For example, EPA’s original “lead action level” was based on whether or not corrosion control was working and not on the health risk. The group Neltner served on recommended establishing a new health-based “household action level” that will empower people to make informed choices about how to manage their risk to lead hazards in water. In February 2015, EPA agreed to develop an estimated level for the panel to consider. Given the consumer’s need for the number as a result of Flint, EDF has urged that the agency move quickly to release the household action level.
EPA has indicated the lead rule update will be issued in 2017. But with bipartisan Hill support and a new Presidential Administration on the horizon, many are anxious to see it move faster.
http://blogs.edf.org/health/?_ga=1.253069193.1248722043.1461086870
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Crises Like Flint are Inevitable When Politicians and Industries Insist on Playing with Matches
May 9, 2016 | Quartz
By Mary Heather Noble
Years ago, I worked as an environmental regulator. The site was a former machining facility perched on a hill with a slug of solvent underfoot. The community in which it was located was a working-class New England town; the neighborhood, a cluster of late 1970s-era split-level homes surrounding an industrial park. On paper, the layout was lovely: industry and homes convenient to each other and the highway, yet out of sight from one another thanks to a patch of forest. In the fall, the trees would turn a vibrant red in the fall, the kind of shade that pops against a bluebird sky and makes you nostalgic for donuts and apple cider.
The activity on the hill was considered ‘light’ industry—no smokestacks or heavy machinery, no menacing noises or noxious smells. The hum of equipment was contained inside a rectangular warehouse, where precision stamping, cutting, and drawing neatly transformed thin sheets of metal into seamless three-dimensional shapes. The factory was a quiet, good neighbor, except that the cutting oils and solvents they used in the process were toxic and chronically spilled onto the production floor and loading dock. The fluid traveled through the concrete and seeped into the ground underneath. The factory was a quiet, good neighbor, except that the contaminated ground water flowed down the hill and into the faucets of the homes below.
Luckily, we’d caught the problem relatively early. By the time the contamination was discovered, the drinking water wells we sampled had trace concentrations of volatile organic compounds. Only a few of them had high enough levels of vinyl chloride to exceed the water quality standard. But the fact that vinyl chloride was even detected told us that the original contaminant, tetrachloroethylene (PCE), had been in the ground long enough to morph into its more toxic form. We had no way of knowing how long these people might have been exposed.
We ordered carbon filtration units to be installed on the impacted wells. I would drop by different residents’ homes to be sure that the treatment systems were all working as they should. One day, a homeowner told me that his wife had just been diagnosed with non-Hodgkin’s lymphoma. Could it have been caused by the water?
His question hung in the musty space of his basement. I steadied my concentration on the sample I was collecting in 40 mL vials—slowly lowering the lid over the dome-shaped meniscus of water, gently taking care to capture a sample void of air.
I don’t remember exactly what I said, but I recall a flash of heat running through my body. I imagine that I reassured him the way regulators are trained to do, explaining that the contamination appeared to have been caught early in his well, and that cancer doesn’t happen overnight. There was no way of knowing whether his wife’s condition was directly linked to the site.
He nodded, hands in his pockets, eyes fixed upon a crack in the floor. But the question still remained. I remember smiling sympathetically and tapping the vial against my palm, checking for evidence of air.
I often think of that moment in the basement—especially now, in the wake of the water crisis in Flint, Michigan, and the more recentdiscovery of perfluorooctanoic acid (PFOA) in drinking water supply wells of Hoosick Falls, New York. Environmental regulators have a bad reputation at the moment—like NASA engineers after the Challenger disaster, or police officers in the days after another unnecessary shooting of a citizen.
I can only imagine what it must be like to be the regulators implicated in these disasters. It’s been a long time since I worked as a state government bureaucrat, so I can’t remember exactly how big my caseload was. But I know that it was roughly twice as big as what I could reasonably manage. What I mean is that my colleagues and I were only able to actively oversee about half of what the public entrusted and expected us to oversee.
Our shorthanded status was a function of the political climate, the financial limitations of our regulatory agency, and the complex industrial history of the state in which we worked. We relied on a triage approach: Is anybody drinking it? Falling asleep at the wheel on sites like the Saint-Gobain facility in Hoosick Falls was a chronic, nagging concern. Being a bureaucrat in the environmental and public health sector often felt to me like working as a firefighter with one truck and one hose, while knowing that everyone around us was playing with matches.
Matches, it turns out, come in all kinds of different forms. Drinking water emergencies can result from decades of industrial activity in concentrated areas and poorly planned land-use decisions—like my machi
I once had a big meeting with the owner and trustees of a certain metal finishing facility, during which I suggested that environmental compliance costs needed to be figured into the operational budget, just like the cost of raw materials. “That’s never gonna happen!” the owner barked at me, and went on to complain to his elected official. A few days later, my supervisor and I got a missive from the higher-ups to “work with them.”
The general public takes comfort in the regulatory systems designed to prevent such disasters—monitoring public drinking water systems, for instance. But as we have learned from the Flint and Hoosick Falls crises, these systems are not failsafe, either. In Flint, the damage inflicted by the desire to cut costs, followed by inadequate sampling and analysis protocols, effectively unraveled the safety net. In Hoosick Falls, and the DuPont site in Parkersburg, West Virginia area prior to that, the contaminant of concern, PFOA, was not even on the list of chemicals regulators were expected to oversee. If not for the inquiring minds of Hoosick Falls resident Michael Hickey, whose father worked at Saint-Gobain for 32 years and succumbed to kidney cancer without any significant risk factors beyond his occupational exposure to PFOA, and the community’s primary care physician, Marcus Martinez, who noticed the elevated incidence of rare cancers for a community of its size, the environmental health disaster in Hoosick Falls would still remain unknown.
The unknowns are perhaps the most distressing of challenges to the environmental regulator—the unknown nature of what chemicals are even out there, the uncertainty regarding their behavior in soil, air, and water once they are released into the world, and the incomplete knowledge we have regarding their toxicity to human health.ne shop on the top of the hill, with all the houses and wells situated further down. Environmental health disasters can flare up from chemical spills and abandoned sites—dry cleaners, auto body shops, old industrial facilities. Or they might be smoldering around an industry on which the livelihood of an entire community depends, so that the social and political will to hold the company accountable for its mess is dissolved by the fear of a big employer leaving town.
When the Toxic Substances Control Act (TSCA) of 1976 was passed, the Environmental Protection Agency required safety testing for only 200 of the 62,000 existing chemicals that were “grandfathered” under the law. TSCA does not require companies to evaluate health effects of exposure to the new chemicals that are introduced to the marketplace—meaning that toxicity is not known for most of the 85,000 industrial chemicals currently in use. And under our existing regulatory system, most chemicals for which human health effects are not yet known are by default unregulated and considered safe until proven otherwise. These are the conditions that create perfect storms like the one currently unfolding in upstate New York.
The media dig through correspondence records to catch a bureaucratic mistake, looking to see when the New York Department of Environmental Conservation and Department of Health were first informed of the contamination. Meanwhile, PFOA is so prevalent, so ubiquitous that it can be detected in the blood of nearly every American citizen—and remains to this day largely unstudied and untested, dancing on the fringes of regulatory authority. A scandal? Yes, indeed. But perhaps the public shaming should also be focused somewhere else.
The regulatory community is not above reproach. Regulators make mistakes. Some of them are bad actors. The situation in Flint provided ample evidence of that. Still, I would venture to say that most public sector environmental health professionals conduct their work with honesty and integrity. In the agency where I worked, if a drinking water crisis materialized on a Friday afternoon, we stayed late enough to make sure affected families would receive bottled water before we went home. After all, helping people was exactly why most of us did the work we did. Going home to cook dinner for our own families in kitchens with unaffected taps only underscored the importance of that mission. For most of us, moments of inadequate response usually represented circumstances where our hands were tied by legal, economic, or political factors.
I encountered many such circumstances during my brief career as an environmental bureaucrat. During my first year with the remediation section of the Connecticut Department of Energy and Environmental Protection, for instance, a political stand-off between then-governor John Rowland and the state employees union resulted in the dismissalof over 2,000 public service employees, including the entire staff of the state laboratory responsible for conducting analyses of soil and water samples for our environmental investigations. Though the staffing of my own section remained intact, our ability to address environmental health hazards was severely compromised. We spent a lot of time and resources maneuvering around the political obstacle to continue doing our work.
Such limitations on the authority and resources needed to protect our communities—whether through slashed funding or loopholes offered to politically-connected industries—are not new or unexpected. But they can wear regulators down, and they do make everything worse.
My daughters love to watch the show “Cutthroat Kitchen,” in which competitors must produce dishes in an environment rife with sabotage. But at the end of the round, the chefs must present their entrees, with the judges unaware of, and uninterested in, the insurmountable challenges behind the scenes. Sometimes the job doesn’t get done. Sometimes the obstacles are too difficult to overcome.
And sometimes you find yourself collecting water samples in a cancer patient’s basement, and her husband wants to know if the water contamination is responsible for her disease. You feel the air leaving the room. But you can’t say a thing, because the truth is you don’t know. There’s too much uncertainty for anyone to really know for sure. That’s the system you are paid to work within. That’s what gives the industry, and the politicians they sponsor, peace of mind.
http://qz.com/679392/crises-like-flint-are-inevitable-when-politicians-and-industries-insist-on-playing-with-matches/
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Offering a Safer Choice is a Good Choice for Business
May 9, 2016 | Environmental Defense Fund
By Michelle Mauthe Harvey
With so many vague claims and misleading labels on products in the marketplace, it’s no surprise that consumers are increasingly calling for safer products and greater transparency with regard to product ingredients. That’s why we at EDF were proud to share the stage at the EPA’s 2016 Safer Choice Partner of the Year awards ceremony yesterday with companies, trade groups, and other NGOs working to do just that.
EDF was recognized alongside other Safer Choice Partner of the Year awardees for “demonstrated leadership in furthering safer chemistry and products.” Among the 17 corporate winners were chemical makers, product manufacturers and retailers like BISSELL Homecare, The Clorox Company, Seventh Generation, BASF Corporation, Ecolab and Wegmans Food Markets, all of whom have submitted products or chemicals for certification under the Safer Choice label.
Consumer health is one of the most pressing – and frequently, less recognized – areas of corporate sustainability, and one where driving adoption of safer practices takes both ambition and leadership. We are gratified to see such a diverse range of corporations take significant steps to introduce safer chemicals into the marketplace and for organizations like Safer Chemicals, Healthy Families and the Healthy Schools Campaign to lend their support and encouragement.
Every product labeled under the Safer Choice certification program makes the marketplace a little safer and our jobs as advocates for consumer safety a little easier.
Creating safer choices, a product at a time
The Safer Choice certification program was initially developed 15 years ago to help consumers identify products that use safer chemical ingredients and to recognize those businesses investing in such solutions. Each product receiving the label has been evaluated by EPA scientists to ensure that product’s ingredients meet the program’s human health and environmental safety criteria.
The Safer Choice label is an easy, meaningful way for consumers to identify which products have been vetted through a science-based process to be better for both human health and the environment. The program currently works with almost 500 partner companies and has certified more than 2,000 products to carry the Safer Choice label.
In recent years, consumers have grown more concerned about how chemicals in their products affect their health and the environment. A 2014 report by the Shelton Group and UL found that 83 percent of consumers bought sustainable products, citing “health and safety” as the reason why, and that 54 percent of consumers were concerned about “chemicals that come in contact with their skin.” Further, a 2015 Consumer Reports survey found that 44 percent of consumers would pay more for cleaning products that are safer for their health and an additional 46 percent said they would consider it.
Submitting products for certification through the Safer Choice program offers companies a clear win-win for making safer chemicals and products available to consumers interested in purchasing them. By proactively moving toward safer ingredients, companies gain recognition and market advantage – meeting consumer demand by putting products with safer formulations on store shelves with a label that makes them easy to identify.
Guiding safer choices up the supply chain
The fewer hazardous ingredients a product contains, the less likely it is that a manufacturer will need to quickly – and at significant cost – reformulate its products, from either new regulatory demands or consumer pressure. Through the publicly-available Safer Chemical Ingredients List (SCIL), the Safer Choice program guides manufacturers and retailers working towards certification to ingredients with lower hazard that still result in products that perform.
National brands are not the only ones to recognize the importance of working towards safer products: retailers including Wegmans, Safeway and Target are also leading the way by seeking and achieving certification of some of their private label products. Target and Walmart have specifically included Safer Choice certification in their public-facing policies around safer ingredients and products.
Consumer Reports has profiled the Safer Choice label as a meaningful tool for shoppers, and we’re inclined to agree. The Safer Choice program offers companies an opportunity to show leadership in the marketplace when it comes to safer ingredients. Chemical and product manufacturers looking to better manage risk, preempt consumer demand and gain greater recognition for safer solutions should consider including Safer Choice certification in their product design process.
http://business.edf.org/blog/2016/05/09/offering-a-safer-choice-is-a-good-choice-for-business/
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US EPA Hosts Workshop on Exposure Science
May 10, 2016 | Chemical Watch
The US EPA's Office of Research and Development is hosting a workshop on Aggregate Exposure Pathways (AEP) on 9-11 May.
The meeting is focusing on four topics:
· definitions, applications, and development of an AEP;
· infrastructure for organising data and information in an AEP;
· integration of AEP and Adverse Outcome Pathway (AOP) frameworks; and
· ecological and human health AEPs.
Following the workshop, the EPA will release one or more summary publications on these topics. It says the publications are expected to promote the development of an AEP framework to help support public health activities.
The workshop follows a National Research Council (NRC) committee plan for evolved exposure science. This called for the development of a "predictive framework that has the ability to forecast exposures with improved accuracy".
The AEP framework has been proposed as a "systems-based approach" to organising exposure data and information. It describes the elements of an exposure pathway, as well as the relationship between those elements, and "sets the stage for forecasting exposure at an internal target site".
The workshop is being held in Research Triangle Park, North Carolina.
https://chemicalwatch.com/47271/us-epa-hosts-workshop-on-exposure-science
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Energy and Water Spending Bill Blocked a Third Time
May 9, 2016 | PoliticoPro - Whiteboard
By Darius Dixon
Senate Democrats today blocked the energy and water spending bill for the third time in as many weeks to prevent a potential vote on an amendment related to the Iran nuclear deal.
A cloture motion to advance the bill failed 50-42, short of the 60 votes it needed, leaving the prospects of the $37.5 billion measure — and the Senate's overall appropriations process — as uncertain as they were before last week’s recess. The impasse relates to an amendment from Sen. Tom Cotton that would block the U.S. from potentially buying more Iranian heavy water.
Before the vote, Sen. Lamar Alexander, who chairs the energy and water appropriations subcommittee, said he would oppose Cotton’s amendment "because it creates the possibility, if it were adopted, that Iran’s heavy water might be purchased not by the U.S. for peaceful purposes [but] by countries like North Korea, who might use it to make nuclear weapons.”
But Alexander nonetheless defended Cotton's right to offer the amendment and said it should get a vote.
"I see no reason why today, tomorrow, and certainly not later than Wednesday, we cannot vote on and dispose of the Cotton amendment and vote on and finish the energy and water appropriations bill,” Alexander said this afternoon. “So if I were planning my week, I would plan on there being a vote to the Cotton amendment."
https://www.politicopro.com/energy/whiteboard
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State UIC Program Peer Review May Help Address EPA Oversight Concerns
May 9, 2016 | InsideEPA
By Bridget DiCosmo
The Ground Water Protection Council's (GWPC) just-completed peer review of Nebraska's underground injection control (UIC) permit program for oil and gas wastewater under delegated Safe Drinking Water Act Class II authority could indirectly help other states address concerns over their programs and EPA's oversight of them, sources say.
But one environmentalist says that while the review itself could be beneficial, it cannot resolve concerns over EPA's current inability to enforce some provisions of the state programs that differ from federal regulations -- a problem the Government Accountability Office (GAO) highlighted in 2014.
GWPC, representing state groundwater regulators and UIC operators, last month published its second in a series of UIC program reviews of state Class II permitting programs, the regulatory category that is used for wastewater and other fluids connected with oil and gas operations.
The peer reviews are conducted under the "StatesFirst" initiative launched jointly with the Interstate Oil and Gas Compact Commission to assess and emphasize the effectiveness of state programs, given that both groups believe states, not EPA, are the appropriate regulators for the oil and gas sector.
The latest report examined the Class II program administrated by the Nebraska Oil and Gas Conservation Commission (NOGCC) since obtaining delegated authority from EPA in 1984, and funded by general NOGCC appropriations from a conservation tax, permit fees, interest on NOGCC's cash account and an EPA grant.
There are currently 145 Class II disposal wells and 505 Class II wells used for enhanced oil recovery in the state, with approximately 57 million barrels of fluid injected into Class II wells annually. The report found that the permitting process implemented by NOGCC "provides appropriate protection" for underground sources of drinking water (USDWs). "In all subject areas investigated as a part of this peer review, the NOGCC managed program has been found to provide the necessary elements, from both a regulatory and activity standpoint to protect USDWs," the report says.
Improving Permitting
The peer review does make several suggestions for making overall improvements to the permit program. For example, the review found that while NOGCC's regulations require protections for water sources with less than 3,000 parts per million (ppm) of total dissolved solids, its regulatory practices protect water sources up to EPA's definition of USDW, which is 10,000 ppm of TDS. The report recommends, "While NOGCC practices have assured that USDWs are protected to 10,000 TDS, these practices should be incorporated into rule to be consistent with Federal requirements and to assure that this standard will continue to be upheld in the future."
The report also suggests that NOGCC limit the number of wells that may be covered under a "blanket" financial bond to a number that would reasonably be plugged with the bond amount, consider publishing permit notices for Class II wells online, and consider using compliance history as a criterion when scheduling well file reviews. The report also recommends that the state work with EPA Region 7 in the event that an applicant requests an aquifer exemption -- which may be granted in certain circumstances to allow injection into what would otherwise be considered a USDW -- to determine "what specific additional regulatory language would be needed to meet current requirements.
The NOGCC peer review follows a November peer review of Utah's Class II regulations, which also made a host of recommendations for improving the program, such as adding cementing height requirements for converted wells to insure the cement is sufficient to prevent migration of fluids into USDWs.
One GWPC source says they hope the reviews will "have a positive effect on the narrative," when asked about whether the reviews could help address concerns raised by GAO and some environmental groups about the Class II program.
"Because EPA oversight reviews are measures of a program against its primacy requirements while the peer reviews are an overall evaluation of the effectiveness of a program, they are clearly different in their scope and purpose," the source says. "However, the fact that a state is willing to voluntarily open its program up to outside scrutiny by peers from other states' UIC programs is a testament to their confidence in the quality of their own program."
Injection Requirements
Under the federal Class II UIC rules, EPA and states with delegated authority establish monitoring, mechanical integrity and other requirements for permitting of underground injection activities for oil and gas disposal wells, enhanced oil recovery wells and other operations related to oil and gas. The goal of the permitting process is to protect USDWs from adverse impacts from such activities.
GAO has twice issued reports critical of EPA's oversight of the Class II programs implemented by states, saying first in a July 2014 report that EPA had not been adequately undertaking annual on-site SDWA compliance evaluations of state programs for Class II permits, an issue that the agency said at the time it would evaluate to address some of the concerns.
Also in that report, the environmentalist points out, GAO highlighted that EPA should pursue a rulemaking to remedy what the office says is a "backlog" of Class II requirements that have been adopted by individual states with delegated Class II authority, but not adopted by EPA, limiting the agency's enforcement authority.
In a more recent report, floated March 28, GAO finds that EPA has in many cases failed to collect adequate data to ensure the program protects USDWs and urging the agency to require states to provide more information, saying "EPA has not collected inspection and enforcement information, or consistently conducted specific oversight activities, to assess whether state and EPA-managed programs are protecting underground sources of drinking water," GAO says.
In response, EPA declines to adopt the call to gather additional data, saying that while it is working to expand its inventory of specific well data it does not think requiring states to submit that information now is necessary. But GAO reiterated that such data is needed to better assess protection of USDWs.
http://insideepa.com/daily-news/state-uic-program-peer-review-may-help-address-epa-oversight-concerns
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Driven By NatGas, 2015 CO2 Emissions 12% Below 2005 Levels, Says EIA
May 9, 2016 | Natural Gas Intelligence
By Jeremiah Shelor
Energy-related carbon dioxide (CO2) emissions in the United States decreased in 2015 and were 12% below 2005 levels, according to a note published Monday by the Energy Information Administration (EIA).
The CO2 emissions reductions in 2015 were driven by changes in the power sector, EIA said. Low commodity prices saw power burn increase substantially in 2015, and gas overtook coal as the leading fuel for U.S. electric generation in the second half of the year (see Daily GPI, Dec. 28, 2015).
“Many of the changes in energy-related CO2 emissions in recent history have occurred in the electric power sector because of the decreased use of coal and the increased use of natural gas for electricity generation...Overall, the fuel-use changes in the power sector have accounted for 68% of the total energy-related CO2 reductions from 2005-2015,” EIA said.
The lowest U.S. energy-related CO2 emissions in the past decade came in 2012, followed by increases in 2013 and 2014 before emissions declined again last year, according to EIA. Natural gas power burn saw an uptick in 2012 corresponding with a decline in commodity prices, which fell below $2/MMBtu Henry Hub in April of that year, according to NGI’s spot prices.
Two primary factors affecting changes in U.S. energy-related CO2 emissions have been weather and the economy, EIA said, though economic growth has decoupled somewhat from CO2 emissions in recent years.
While the largest annual decline in CO2 emissions coincided with the recession in 2008 and 2009, the economy has grown since 2005 even as emissions have declined, EIA said.
“Adjusted for inflation, the economy in 2015 was 15% larger than it was in 2005, but the U.S. energy intensities and carbon intensities have both declined,” EIA said. “On a per-dollar of gross domestic product (GDP) basis, in 2015, the United States used 15% less energy per unit of GDP and produced 23% fewer energy-related CO2 emission per unit of GDP, compared with the energy and emissions per dollar of GDP in 2005.”
As for weather, with the United States having significantly more heating degree days than cooling degree days on a population-weighted basis, “annual energy-related CO2 fluctuations are more likely to resemble annual fluctuations in heating degree days. In the past decade, energy-related CO2 emission and heating degree days were both lowest in 2012,” EIA said.
Even as increased burning of natural gas has helped drive a decrease in U.S. CO2 emissions, the Obama administration has been moving forward on what analysts have described as an “unprecedented” list of regulations targeting the oil and gas industry (see Daily GPI, April 25).
Among them, the Department of Interior has proposed a rule to regulate hydraulic fracturing on public and tribal lands (see Daily GPI, March 20), and the Environmental Protection Agency is moving forward with plans to regulate methane emissions from oil and gas production and transmission facilities (see Daily GPI, March 10).
http://www.naturalgasintel.com/articles/106359-driven-by-natgas-2015-co2-emissions-12-below-2005-levels-says-eia
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DOJ: High Court Shouldn't Revisit Power Plant Mercury Rule
May 10, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court should deny a request by 20 states to review a lower court's decision to leave the Mercury and Air Toxics Standards in place because the states lack standing and because a recent Environmental Protection Agency finding has mooted the issue, according to the federal government (Michigan v. EPA, U.S., No. 15-1152, briefs filed 5/6/16).
The U.S. Justice Department, in a May 6 brief filed on behalf of the EPA, argued that the state coalition is unable to show an injury that resulted from a 2015 decision by U.S. Court of Appeals for the District of Columbia Circuit that left the MATS rule in place while the EPA worked to address a legal flaw. The MATS rule, which set limits on power plant emissions of mercury and other hazardous air pollutants, directly imposes obligations on the power sector, not on states, the government argued.
The state coalition, led by Michigan, successfully challenged the Mercury and Air Toxics Standards before the Supreme Court in 2015, obtaining a ruling that held the EPA erred when it did not consider cost in its threshold decision on whether it was “appropriate and necessary” to regulate power plants under Section 112 of the Clean Air Act (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015); White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, 12/15/15; 241 DEN A-9, 12/16/15).
However, the Supreme Court's decision left the fate of the MATS rule up to the D.C. Circuit, which decided to leave the standards in place while the EPA conducted the required cost consideration.
The states now want the Supreme Court to consider whether a reviewing court can leave an unlawful rule in place if a regulatory agency promulgated that regulation without having the statutory authority to do so. If the Supreme Court were to grant the states' petition, the court would review the D.C. Circuit's more than 20-year-old test for deciding whether to vacate an agency regulation or action on remand, which involves an analysis of the seriousness of the legal flaw in question and the disruptive consequences of vacating a decision only to have it later be reissued.
DOJ Argues Issue Is Moot
The Justice Department argued in its brief that even if the D.C. Circuit's decision to remand the MATS rule back to the EPA without vacating the regulation had caused the states a “cognizable injury,” the court's order no longer has any effect and the issue is moot.
The federal government said the issue is mooted as result of the EPA's issuance of a supplemental finding that reaffirmed that it is “appropriate and necessary” to regulate power plants after considering cost. Attorneys told Bloomberg BNA after the EPA issued its new determination that the federal government would likely argue that the states' petition for certiorari with the Supreme Court is now moot (82 DEN A-4, 4/28/16).
“That determination—not the D.C. Circuit's decisions to remand the rule without vacatur—provides the legal authority under which the rule is now in effect,” the Justice Department said. “Thus, even if this court granted certiorari and held that the D.C. Circuit's remand order was unlawful, its decision would have no effect on the rule's ongoing validity, and petitioners would not be entitled to any retrospective relief for the harms the rule allegedly caused them during the pendency of the supplemental ruling.”
The state coalition anticipated that the EPA would issue a supplemental appropriate and necessary finding in their petition, which argued that a challenge to the D.C. Circuit's decision would fall under an exception to the mootness doctrine known as “capable-of-reptition-yet-evading-review.” That exception allows for challenges that would otherwise be moot to be considered if the duration of the challenged action is too short to be fully litigated and there is a reasonable expectation that the parties would be subjected to the same action again.
The federal government argued in its brief that the state petitioners failed to meet the requirements for that exception because it is “purely speculative” that the states would be subjected in the future to a similar remand-without-vacatur order in another challenge to an EPA regulation. In addition, the Justice Department said there is also no reason to believe that any such future order would be in effect for such a short period of time.
Appeals Panel Decision Called Reasonable
The Justice Department also disputed a pair of claims raised by the states: that the D.C. Circuit's decision conflicted with the Supreme Court's 2015 Michigan v. EPA ruling and that the D.C. Circuit's decision created a circuit split that the Supreme Court should address.
The federal government said the D.C. Circuit's decision to remand the MATS rule back to the EPA without vacating the standards “reflected a reasonable exercise in remedial discretion” based on the significant public health benefits associated with leaving the rule in place, the lack of disruption to regulated power plants that would occur as a result of leaving the rule in place and the EPA's plan to quickly reevaluate its appropriate and necessary finding.
That decision by the D.C. Circuit does not contravene the Supreme Court's 2015 Michigan ruling, which did not require that the MATS rule be vacated, the Justice Department said. The federal government's brief noted that the states had asked the Supreme Court to vacate the MATS rule in that litigation, relief that the court decided to not grant.
The Justice Department also disputed that there is a circuit split on the issue of the D.C. Circuit's “remand with vacatur” of the MATS rule. The states did not cite a single decision in their brief that held vacatur of an agency decision is required in every case where an agency action is held to be unlawful, the federal government argued.
The state coalition's petition for certiorari also is opposed by a number of environmental and public health groups, including the American Lung Association, the Environmental Defense Fund and the Sierra Club, and several state and local governments that support the EPA's mercury standards. The state, local and public health organizations filed a May 6 brief that made many of the same arguments against the states' petition as were advanced by the Justice Department.
An industry group that includes Calpine Corp. and Exelon Corp., which intervened on behalf of the EPA in past litigation over the mercury rule, also filed a May 6 brief in opposition to the cert petition.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=89167730&vname=dennotallissues&fn=89167730&jd=89167730
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Kansas Bill Suspends Work on EPA's Clean Power Plan
May 10, 2016 | BNA Daily Environment Report
By Christopher Brown
Kansas missed an “economic and moral” opportunity to address climate change after Gov. Sam Brownback (R) signed a bill halting the state's work on implementing federal carbon dioxide standards for power plants, environmental advocates said.
Brownback signed the bill (SB 318) April 5 after the U.S. Supreme Court in February stayed the Environmental Protection Agency's Clean Power Plan while the rule is being litigated.
“By passing SB 318, we not only fool ourselves into sitting idle aside a potential huge economic and moral leadership opportunity to expand Kansas clean energy, but also we fail to help future generations of Kansans deal with an increasingly dangerous and expensive climate crisis,” Zack Pistoria, a spokesman for the Kansas Sierra Club, told Bloomberg BNA May 9.
The EPA's Clean Power Plan (RIN:2060-AR33) sets carbon dioxide emissions limits on the power sector in each state, which would be implemented by state regulators. Kansas is among the 27 states challenging the rule.
The bill, which passed by the House March 24 by a vote of 98–26 and the Senate April 28 by a vote of 39–1, would suspend all state agency “activities, studies and investigations” carried out in preparation for submitting a state plan to the EPA to implement the rule. The suspension would remain in place until the stay was lifted, but it would not prevent state agencies from communicating with each other or exchanging information to meet their statutory obligations, according to a conference committee report brief on the bill.
In a statement, Dorothy Barnett, executive director of the Climate and Energy Project, a Kansas environmental group, said, “Despite a great deal of work by the Kansas Corporation Commission, the Kansas Department of Health and Environment, Kansas utilities, and clean energy advocates like the Climate+Energy Project, SB 318 delays important and necessary research to determine the most cost-effective path for our state to proactively address our energy future and meet historic carbon regulations.”
A spokeswoman for Brownback did not respond to a request for comment.
Gina Penzig, a spokeswoman for Westar Energy, the state's largest electric utility, told Bloomberg BNA May 9 that it had been neutral on the suspension of implementation activities.
“We didn't take a position on the suspension, but we do think that it may have been premature to spend resources developing an implementation plan that may look very much different when the litigation has played itself out, and which may not be enacted at all,” Penzig said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=89167741&vname=dennotallissues&fn=89167741&jd=89167741
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U.S. Utilities Boost Investments in Wind, Solar Power
May 9, 2016 | Wall Street Journal
By Cassandra Sweet
Large U.S. utilities are taking advantage of government subsidies to buy and produce more renewable energy in anticipation of tougher new regulations on carbon emissions.
Duke Energy Corp., Southern Co. and the energy unit of Warren Buffett’s Berkshire Hathaway Inc. are among the utility companies that are investing more in solar and wind farms and ramping up purchases of clean power, spurred by renewable-energy mandates in more than half the nation’s states and expected federal limits on greenhouse-gas emissions.
The utilities continue to burn coal—and increasingly natural gas—to provide the bulk of their power. But power companies are investing in more wind and solar farms because they can sell renewable electricity to other utilities at higher prices than conventional coal and natural gas-fired plants, under contracts up to 25 years long. And federal renewable-energy tax credits reduce the cost of buying or building a new wind or solar power facility, as well as help offset corporate taxes, utility executives say.
“It’s a very reliable, sustainable, predictable business transaction,” said Southern Chief Executive Tom Fanning.
Southern plans to invest about $5 billion in renewable energy over the next three years, more than double what it plans to spend on its new nuclear, natural-gas and clean-coal plants.
The Atlanta-based company generates about 2% of its power from solar, wind and other renewables, up from 1% a year earlier. It owns or co-owns 23 solar farms and two wind farms across several states that produce 3,800 megawatts at full capacity, up 46% from the end of 2014.
One megawatt of solar power can serve about 164 average U.S. homes, while one megawatt of wind power can serve about 273 homes, according to industry organizations.
Southern has reduced the percentage of power it generates from coal to about 27% from 33% a year ago. Its overall first-quarter profit of $485 million was down 4.5% over the previous year. But its commercial power unit contributed $50 million, up 52% from the year before, and the company expects new solar and wind farms to help boost the unit’s annual earnings by 40% this year to $300 million.
Duke plans to nearly double its production and purchases of renewable power to 8,000 megawatts by 2020. It expects to invest $3 billion in new wind and solar projects in the next five years, up from the $4 billion it spent on renewables over the prior 10 years. Solar and wind farms generate 2.5% of the company’s power, nearly double their share in 2012.
“We’re continuing to invest in cleaner forms of energy, particularly in solar and wind,” said Duke Chief Executive Lynn Good.
The Charlotte, N.C.-based company’s first-quarter profit of $694 million was down 20% from the previous year. But its renewable-energy unit contributed $27 million, nearly triple last year’s figure. Duke expects the unit to earn $135 million this year, nearly twice as much as last year.
Berkshire Hathaway’s energy unit said Friday that it plans to invest $2.1 billion in new wind and solar farms this year and another $2 billion through 2020.
Berkshire Hathaway Energy generates 28% of its power from wind and sun, up from 25% a year ago, and isn’t investing in any new generation that isn’t renewable. It posted first-quarter profit of $490 million, up nearly 5% from a year earlier. Berkshire posted total quarterly earnings of $5.6 billion, up 8% from last year.
U.S. wind-power generation has more than doubled over the past five years thanks to new wind farms, and accounted for about 200 million megawatt-hours of electricity in 2015, nearly 5% of the nation’s total power supply, according to the Energy Department.
Solar-power generation grew even more rapidly over the past five years, accounting for nearly 40 million megawatt-hours last year, a 32-fold increase from five years earlier.
Wind-power prices are down 57% from 2010 to an average of $29 a megawatt-hour, while solar-power prices also are 57% lower at $57 a megawatt-hour, according to Bloomberg New Energy Finance, which tracks renewable energy markets.
Wholesale coal- and natural gas-fired power averaged $35.07 a megawatt-hour in 2015, according to a Wall Street Journal analysis of market data from the Energy Department.
Utilities are often willing to pay higher prices for wind and solar power because they need the electricity to comply with state rules. The Obama administration also introduced rules last year that require power plants to cut carbon dioxide emissions by 32% from 2005 levels by 2030.
Although the Supreme Court in February temporarily suspended the regulations while courts resolve lawsuits by more than two dozen states that seek to block them, many utilities are moving forward with plans to diversify their energy sources anyway.
“We’re seeing more and more solar picked up by these big-name utilities,” said Colin Smith, an analyst at GTM Research.
http://www.wsj.com/articles/u-s-utilities-boost-investments-in-wind-solar-power-1462825903
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EPA Rejects House Plea to Extend Chemical Security Outreach
May 10, 2016 | BNA Daily Environment Report
By Brian Dabbs
The Environmental Protection Agency quickly shot down May 9 a House Republican request to extend the comment period for its Risk Management Program revision.
A set of top House Republicans, led by Energy and Commerce Chairman Fred Upton (R-Mich.), pushed the EPA on May 6 for a 30-day extension of its comment period for the contested chemical security proposal, but the agency dismissed that as unnecessary.
“EPA is not planning to extend the comment period as the agency collected comments and information through our request for information, held numerous outreach meetings with industry groups, collected information through the Small Business Advocacy Review Panel, and made available a prepublication version of the rule and key technical documents on our website two weeks prior to publication,” EPA spokeswoman Melissa Harrison told Bloomberg BNA May 9.
“The agency has also committed to finalizing any changes to the RMP rule in 2016 and will consider and address all comments we receive on the final rule.”
EPA Assistant Administrator Mathy Stanislaus previously said the roughly 2 1/2 years of EPA outreach to stakeholders before crafting the proposal justifies a 60-day comment period (61 DEN A-16, 3/30/16).
The proposal, issued in February, requires facilities to conduct analysis of inherently safer technologies and industrial practices, while revising language on emergency preparedness, public access to information on the facilities and disaster response coordination. It follows through on EPA commitments to improve safety in the wake of the West, Texas, fertilizer plant explosion in 2013 (76 DEN A-16, 4/19/13) .
Insufficient Comment Time
The EPA's 60-day comment period, slated to expire May 13, is insufficient in light of the “complexity and scope” of the proposal, Upton said, alongside Rep. Ed Whitfield (R-Ky.), chairman of the Energy and Commerce Subcommittee on Power, and Small Business Committee Chairman Steve Chabot (R-Ohio).
“We are concerned that the EPA has been proceeding on an accelerated timeline that will not allow for meaningful and thorough public review of the proposal, or for appropriate agency consideration of public comments,” said the House energy and business leaders. “There are questions about whether the agency has fully considered the comments and recommendations to date by small entities, including small businesses and small governmental jurisdictions, potentially subject to the rule.”
Republican, Business Outcry
The three lawmakers criticized the EPA for sending the proposal to the Office of Management and Budget for approval two months before the agency finished its Small Business Advocacy Review Panel report. That submission to the OMB took place last December.
The complaints outlined in the letter, however, fall in line with outcry against the RMP proposal in recent months.
The attorneys general of Texas and Louisiana blasted the rule in a May 3 letter to EPA Administrator Gina McCarthy (88 DEN A-14, 5/6/16).
In the letter, Louisiana Attorney General Jeff Landry and his Texas counterpart, Ken Paxton, said the EPA abused its Clean Air Act authority in issuing the proposal, while adding that the rulemaking would raise the risk of terrorism.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=89167742&vname=dennotallissues&fn=89167742&jd=89167742
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Cyberattack or Cyberwar? Senator Seeks Clarity
May 10, 2016 | E&E Daily
By Blake Sobczak
A South Dakota senator is pressing the Obama administration to clear up its cyberwar policy as hackers take aim at critical infrastructure.
Sen. Mike Rounds (R-S.D.), a member of the Senate Armed Services Committee, said yesterday he would introduce a bill to make the president assess how a cyber strike on the United States could resemble attacks using conventional guns and missiles.
"With the Internet playing a major role in nearly every aspect of our lives, we not only face the threat of losing our personal information online, but we are at risk of having our daily lives interrupted by cyberattacks that have the ability to cripple our power grid, water supplies and communications networks," Rounds said in a statement yesterday announcing the bill, called the "Cyber Act of War Act of 2016."
In a separate op-ed in The Wall Street Journal, Rounds cited the online infiltration of the Bowman Avenue Dam in New York, "among many other known cyberattacks."
The Justice Department in March unsealed indictments against seven Iranian hackers accused of attacking U.S. systems, including one individual suspected of breaking into computer servers used to control the small dam (EnergyWire, March 28).
The dam's physical operations were never affected, but hackers have had more success elsewhere. A Dec. 23, 2015, cyberattack on Ukraine's power grid cut lights out for a few hundred thousand people, making operators revert to "manual mode" in order to restore power.
Rounds' bill would task the Obama administration with developing "a policy for determining when an action carried out in cyberspace constitutes an act of war against the United States." Current guidance is hazy, military officials and legal experts have said. The Obama administration has emphasized that it takes cues from international standards but isn't bound to respond to foreign government hackers in kind.
"The United States will continue to respond to cyberattacks against U.S. interests at a time, in a manner, and in a place of our choosing, using appropriate instruments of U.S. power and in accordance with applicable law," the Department of Defense said in its most recent Cyber Strategy.
The Cyber Act of War Act would also bring updates to DOD's Law of War Manual to account for the threat of cyberwar.
"By clearly defining what constitutes a cyber act of war, the nation will be better able to respond to a cyberattack and better deter bad actors from attempting an attack on the U.S. in the first place," Rounds said in his op-ed. "Recent events have shown how urgently action is needed."
This story also appears in EnergyWire.]
http://www.eenews.net/eedaily/2016/05/10/stories/1060036955
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Nation's Pipelines Increasingly at Risk of Cyber, Physical Attacks
May 9, 2016 | Homeland Security Today
By Belle Hillenburg
The recent attacks in Brussels--the deadliest acts of terrorism in Belgium's history--revealed the increasing complexity of securing against global terrorist threats. In the United States, there are over 2.5 million miles of pipeline that are at an increasing risk of attack—both cyber and physical.
Although there have been no successful attacks against the nation’s pipeline system, there have been several attempts. The House Committee on Homeland Security's Transportation Security Subcommittee held a hearing on April 19 to address possible safety vulnerabilities within the pipeline system.
Subcommittee Chairman John Katko (R-NY) said the nation needs to outline ways to protect the US pipeline system against both physical and cyberattacks. He cited cyberattacks as the biggest potential threat to the nation’s pipeline system.
“As hackers become more sophisticated, we cannot discount the possibility that they may one day seek to intrude on the industrial control systems, disrupting the flow of oil and natural gas,” Katko said.
The network of pipelines in the United States is used to carry oil, gas and other hazardous wastes. Pipelines have been deemed the safest ways to move these liquids and are critical to the nation’s infrastructure and economy.
Cyberattacks could infiltrate supervisory control and data acquisition systems and cause fires, spills, or explosions within the nation’s pipelines from remote locations over the Internet or from other mobile technologies.
The threat level for pipeline attacks in the US is relatively low. However, the frequency of attacks abroad and the rise of ISIS is cause for concern. “Our adversaries, including China, North Korea, Russia and Iran have shown a proclivity for launching sophisticated cyberattacks against US companies, banks and critical infrastructure,” Katko said.
The Transportation Security Administration (TSA) currently works with industry stakeholders and other government organizations, such as the Pipeline and Hazardous Materials Safety Administration, to ensure pipeline safety.
The most recent cyber regulations from the TSA were written in 2011. Furthermore, it has been several years since the subcommittee held a hearing on the status of the nation’s pipelines, according to Rep. Kathleen Rice (D-NY).
“We must remain cognizant of the fact that terrorists are always looking to exploit vulnerabilities and our pipelines are a major target, so we always have to stay two steps ahead,” Rice said.
TSA Surface Division Director Sonya Proctor said TSA conducts corporate and physical reviews with industry pipeline operators and works closely with government officials to ensure pipeline security from terrorist attacks. TSA measures the risk to pipelines based on several factors including the amount of energy transferred, number of miles in high-consequence or high-threat urban areas, the number of pipelines on military bases and pipelines that serve electric power plants.
To defend systems against cyberattacks, pipeline operators currently follow the American Petroleum Institute Standard 1164, which requires operators to keep systems for pipeline operations separate from business systems, said Andrew Black, CEO and president of Oil Pipe Lines.
The API Standard 1164, from the pipeline SCADA Security, requires pipeline operators to follow precautionary measures and understand preventative behavior for sound security practices regarding business and government requirements. API Standards regulate industry practices in order to preemptively protect companies from safety concerns, among other factors. These standards are updated annually.
In addition to these standards, there are currently recommendations provided by TSA to industry executives regarding safety concerns, though these guidelines are not required of industry leaders.
“I believe the environment in which we operate now allows a great deal of flexibility, and certainly within the current environment with the evolving threats, the ability to be flexible I think is very important,” Proctor said. “We have had great success with voluntary guidelines … We are pleased to have this kind of collaboration and partnership with the industry.”
http://www.hstoday.us/briefings/daily-news-analysis/single-article/nation-s-pipelines-increasingly-at-risk-of-cyber-physical-attacks/e55550d405dcb5ba3f1e9ca1cabc7757.html
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Conservatives Press Congress To Overhaul NAAQS Process
May 9, 2016 | InsideEPA
A broad coalition of conservative groups is urging House and Senate lawmakers to advance legislation that would overhaul EPA's process for setting national ambient air quality standards (NAAQS), including extending from five to 10 years the Clean Air Act mandate for the agency to assess whether to revise its six ambient air limits.
In a May 9 letter to House Energy & Commerce Committee Chairman Fred Upton (R-MI) and Senate Environment & Public Works Committee Chairman James Inhofe (R-OK), the groups cite EPA's Oct. 1 decision to tighten its ozone standard as justification for the legislation. They say the rule revising the limit from 75 parts per billion (ppb) down to 70 ppb will impose major economic harm and shows the flaws in the NAAQS process.
The groups -- including Americans For Prosperity, the Competitive Enterprise Institute and others -- urge the lawmakers “to reform the rulemaking process for ozone and other pollutants regulated under NAAQS.”
EPA Oct. 1 tightened its ozone NAAQS from the prior level of 75 ppb, set in 2008, down to 70 ppb, citing public health concerns. Many industry groups, some states and leading GOP lawmakers have warned, however, that the new standard will result in economic damage because of new pollution control mandates that will apply to areas finding themselves in “nonattainment” with the tougher standard.
“Without changes to the ozone regulation and reform of the rulemaking process, economic activity could be brought to a standstill in many areas across the country,” the conservative groups say.
“The result of a nonattainment designation can be disastrous,” they write. “Local governments risk losing federal highway funds. Oil and gas operations, with the royalty and tax revenue they bring, may cease. Manufacturers may be forced to relocate or shut down, destroying jobs in the process.”
The groups therefore urge support for measures such as two bills -- H.R. 4775, and its Senate companion, S. 2882 -- which would overhaul the NAAQS process in general and apply specific conditions to ozone regulation.
The bills would extend implementation deadlines for the ozone NAAQS and delay any further revision of the standard until at least 2026, and would further reset the statutory five-year review cycle for NAAQS for all six "criteria" pollutants to 10 years, among other measures.
They would also ease permit requirements, allow NAAQS to be set based on technological feasibility instead of purely health considerations and qualify a wider array of events as “exceptional” and hence eligible for regulatory exemptions.
In April 14 written testimony to a House panel, however, acting EPA air policy chief Janet McCabe said H.R. 4775 “would potentially delay further public health benefits and also potentially delay benefits to ecosystems and public welfare.” The proposed changes to the NAAQS review process in general “would introduce uncertainty into a long-standing, proven approach for protecting public health,” she added.
http://insideepa.com/news-briefs/conservatives-press-congress-overhaul-naaqs-process
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White House Reviewing EPA's Particulate Regs
May 9, 2016 | E&E News PM
By Sean Reilly
More than a year after unveiling its original draft, U.S. EPA has wrapped up work on the final version of requirements for state and local air agencies to comply with the 2012 fine particulate matter standard.
The agency sent the final rule to the Office of Management and Budget late last week, according to the Reginfo.gov site. Once OMB's Office of Information and Regulatory Affairs completes an obligatory review, EPA's goal is to release the final regulations next month, according to a rundown of federal rulemakings released last fall.
The regulations will cover key aspects of the implementation plans that state and local agencies must submit to meet the 2012 standard, including their policies for addressing the pollutants that contribute to creation of fine particulates and deadlines for bringing nonattainment areas into compliance.
EPA had released its draft proposal -- spanning more than 130 triple-columned pages in theFederal Register -- in March 2015 (Greenwire, March 12, 2015).
Fine particulates refer to particles that are one-thirtieth the diameter of a human hair. Often dubbed PM2.5, they are linked to early death and aggravation of cardiovascular and respiratory diseases.
EPA officials had tightened the PM2.5 threshold in late 2012 from 15 micrograms per cubic liter to 12 micrograms per cubic liter, citing a review of public health science. They followed up last year with an initial round of attainment designations for areas around the country.
But EPA's slowness in also spelling out the actual state implementation plan (SIP) requirements drew a rebuke from the National Association of Clean Air Agencies, which represents state and local regulators.
All states that have to prepare PM2.5 implementation plans "are severely hamstrung by the lack of a final rule and some are entirely unable to move forward with any development of a SIP," association leaders wrote in comments filed last May that were among 60 that EPA received on its initial draft.
"We cannot overstate how critically important it is," they added, "that EPA ensure that future implementation rules and guidance documents are developed, proposed and finalized on a much more accelerated timeline."
http://www.eenews.net/eenewspm/2016/05/09/stories/1060036930
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Agreeing to Dismiss Water Suits Preserves Refiling Rights
May 10, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
Industry and environmental groups are preserving their right to challenge the Clean Water Rule by either voluntarily seeking to withdraw their complaints filed in federal district courts or not opposing others' motions to dismiss, several attorneys told Bloomberg BNA.
These actions, though procedural in nature, aren't surprising, the attorneys say, especially since the U.S. Court of Appeals for the Sixth Circuit reaffirmed April 21 its earlier decision to review 22 petitions filed against the water rule (Ohio v. U.S. Army Corps of Eng'rs (In re EPA and Dep't of Def. Final Rule) 6th Cir. 2016); 78 DEN A-4, 4/22/16)82 ERC W-3, (4/29/16)).
About 15 lawsuits by coalitions of states, industry and manufacturing groups and environmental groups have been filed in about 11 federal district courts challenging the rule (RIN:2040-AF30) since it took effect in August 2015 following its publication by the Environmental Protection Agency and the U.S. Army Corps of Engineers (88 DEN A-11, 5/6/16).
“With all of the action gravitating to the 6th Circuit, groups may be deciding it's increasingly prudent to let that strand play out (whether or not they are directly involved in it) and not sink further resources, for now, into the other pieces of litigation around the country,” Bruce Myers, public interest attorney with the newly formed Washington D.C.-based Animals | Environment PLLC, told Bloomberg BNA in a May 9 e-mail.
Not Worth the Resources
Justin Pidot, professor with the University of Denver Sturm College of Law, agreed with Myers' assessment in a May 9 e-mail to Bloomberg BNA.
“I suspect the parties decided it wasn't worth the resources to litigate the district court cases since the courts of appeals cases are proceeding,” he said.
Since the Sixth Circuit's decision, at least two federal district courts—the U.S. District Court for the District of Arizona and the U.S. District Court for the District of Columbia—have agreed to motions to voluntarily dismiss without prejudice.
The U.S. District Court for the Southern District of Texas is expected to approve a motion filed by the EPA and the corps to dismiss without prejudice a challenge to the rule filed by railroad and transportation groups. The Association of American Railroads, American Farm Bureau Federation, Texas Alliance for Responsible Growth, Environment and Transportation support the agencies' motion.
If a court dismisses a case with prejudice, litigants will lose their ability to refile, according to Pidot. That is why these groups are either seeking voluntary dismissals without prejudice or not opposing motions to dismiss the lawsuit without prejudice, he explained.
Myers said, “It's like they are seeking to step back, or press pause, to see how this current part of the saga plays out in the 6th.”
Jon Devine, senior attorney with the Natural Resources Defense Council, said the coalition of environmental groups, led by NRDC, sought voluntary dismissal of its lawsuit in the U.S. District Court for the District of Columbia because “the 6th Circuit decided that it had jurisdiction and the full 6th Circuit did not opt to hear the case.”
More importantly, Devine said, the NRDC petition is one of 22 before the Sixth Circuit already.
Pidot said he expects most of these cases will be refiled in the district courts if the courts of appeals decide they lack jurisdiction. The Eleventh Circuit is yet to decide whether it will defer to the Sixth Circuit on the question of court's jurisdiction to hear the water rule challenges, or to proceed on its own. The Tenth Circuit has been petitioned on the question of jurisdiction, but it still hasn't decided how it will proceed.
Likewise, four of the federal district courts—the Northern District of California, the Northern District of Georgia, the District of Minnesota and the Western District of Washington—are expected to determine any day whether they too will defer to the Sixth Circuit or proceed on their own.
Pidot said it is a good time to get out of district courts right now irrespective of how the 11th Circuit decides to proceed.
“But if down the line a court of appeals, or the Supreme Court, reverses course on jurisdiction I think we'll see district court cases return,” Pidot wrote in an e-mail.
Moving Ahead With Briefing
Meanwhile, the Sixth Circuit is taking no chances with further delays in reviewing the rule. Sixth Circuit judges told about 150 parties that are behind the 22 petitions to file a briefing plan within 21 days of the May 9 order, while noting that they are aware that some groups may challenge the circuit's April 21 ruling on the question of jurisdiction in the U.S. Supreme Court.
“The court is not oblivious to the possibility that one or more petitions for certiorari may be filed challenging the jurisdictional ruling. Nonetheless, it is important to establish a schedule for moving forward toward adjudication on the merits, and we do not anticipate staying proceedings unless and until certiorari were granted,” the Sixth Circuit order said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=89167731&vname=dennotallissues&fn=89167731&jd=89167731
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May 9, 2016 | The Hill - Congress Blog
By Russell A. Davidson
As the U.S. Senate passed its long-delayed energy bill April 21, the irony was acute. Here was the world’s greatest deliberative body voting to kill carbon-cutting requirements for the federal government - on the eve of Earth Day and the signing of the COP 21 climate treaty in Paris.
In three short lines in more than 800-pages of legislation, the Senate repealed a policy that is already helping buildings owned by Uncle Sam – the nation’s largest landlord – cut greenhouse gas emissions. Specifically, the Senate voted to eliminate Section 433 from the Energy Independence and Security Act of 2007, which requires that new and majorly renovated federal buildings meet incremental targets leading to net zero energy consumption by 2030. The House last year also voted to repeal this provision in the landmark statute, an action which President Obama at the time said he would veto.
Through design, our profession is helping guide building owners, consumers and governments - particularly Uncle Sam - to be leaders in energy conservation and reduced dependence on the use of fossil fuels. Residential and commercial buildings account for almost 40 percent of both total U.S. energy consumption and carbon dioxide (CO2) emissions. According to government statistics, better designed buildings have already saved our country approximately $560 billion in energy costs since 2005.
So why is Congress so determined to roll back this common-sense and money-saving provision? Section 433’s opponents (primarily the fossil fuel lobby) claim that it is simply too difficult to implement. But that ignores the realities of a market where such renovated federal buildings like the Wayne Aspinall federal courthouse in Colorado and the Edith Green-Wendell Wyatt Federal Building in Portland, Ore. are meeting the 2030 targets right now. In fact, the renovated Portland building was delivered 10 months early, saving taxpayers more than $900,000 in the process.
Meanwhile, stakeholders from a broad array of industries have been working with the Energy Department to implement this rule in a way that is smart, efficient, and effective.
Requiring significant energy reduction targets in new and majorly renovated federal buildings demonstrates to the private sector that Uncle Sam can set an example for other nations to follow. The targets help spur the development of new materials, construction techniques, and technologies to make buildings more energy efficient. And they show that significant energy reductions are both practical and cost-effective.
That’s why not only architects, but more than 300 other groups oppose efforts to weaken this energy-saving policy. We hope this short-sighted repeal is stripped from any bill that emerges from a House-Senate conference. And if it isn’t, the president should veto this mis-guided legislation.
Russell A. Davidson, FAIA, is president of the American Institute of Architects.
http://thehill.com/blogs/congress-blog/energy-environment/279069-earth-day-irony
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In Novel Tactic on Climate Change, Citizens Sue Their Governments
May 10, 2016 | New York Times
By John Schwartz
Global warming is already disrupting the planet’s weather. Now it is having an impact on the courts, as well, as adults and children around the world try to enlist the judiciary in their efforts to blunt climate change.
In the United States, an environmental law nonprofit is suing the federal government on behalf of 21 young plaintiffs. Individuals in Pakistan and New Zealand have sued to force their governments to take stronger action to fight climate change. A farmer in Peru has sued a giant German energy utility over its part in causing global warming.
And while the arguments can be unconventional and surprising, some of the suits are making progress.
Last month, a federal magistrate judge in Oregon startled many legal experts by allowing the lawsuit filed on behalf of 21 teenagers and children to go forward, despite motions from the Obama administration and fossil fuel companies to dismiss it; the suit would force the government to take more aggressive action against climate change. The ruling by the magistrate judge, Thomas M. Coffin, now goes to Federal District Court to be accepted or rejected.
Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School, called the ruling a potential landmark.
“It is the first time a federal court has suggested that government may have a constitutional duty to combat climate change, and that individuals can sue to enforce that right,” he said.PhotoSaul Luciano Lliuya, a farmer in Peru, sued a German utility for its proportional contribution to global climate change. CreditGermanwatch
The young plaintiffs, led by the environmental law nonprofit Our Children’s Trust, argued that the Obama administration and the administrations before it had ample evidence of the risks of climate change and “willfully ignored this impending harm.”
Victoria Barrett, one of the plaintiffs, from Westchester County, N.Y., said that older generations had ignored the threat to the planet even as the scientific evidence of warming became undeniable.
The current plans and efforts to battle climate change are not enough, Ms. Barrett, 17, said, adding that her generation, with its passion and social media tools, would make a difference.
“We want our children to look back in the textbooks and say, ‘Oh, our parents’ generation — they really fought for us,’ ” she said.
The lawsuit calls for the courts to order the government to stop the “permitting, authorizing and subsidizing of fossil fuels” — by, for example, canceling plans for projects like a liquefied natural gas export terminal in Oregon — and “to develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize the climate system.”
Julia Olson, the executive director and chief legal counsel for Our Children’s Trust, helped form the organization in 2010 in collaboration with the iMatter Youth Movement, then known as Kids vs. Global Warming.
In an interview, Ms. Olson said the goal was to pursue action against climate change in the courts as a human rights issue, and in the name of young people. “Most of them can’t vote,” she said, “and they don’t have the money to lobby.”
Youth-oriented climate groups put out calls for volunteers, and Ms. Olson found herself with more than enough enthusiastic young activists willing to be plaintiffs. The organization is financed in part by individual contributions and institutional funding from groups like the Rockefeller Brothers Fund, which contributes heavily to environmental causes.
An earlier federal suit from Our Children’s Trust failed in 2012; the organization is also pursuing several lawsuits at the state level and collaborating on a number of international suits.
It scored a victory in Washington State recently, when Judge Hollis R. Hill of King County Superior Court ordered the State Department of Ecology to develop an emissions reduction rule in response to a legal challenge from Our Children’s Trust.
As for the federal case, Ms. Olson said, “We are optimistic that the decision will affirm the findings and the recommendations and put us on a track to a trial.”
The Our Children’s Trust suit is part of a wave of citizen actions to take on climate change.
In Pakistan, Ashgar Leghari, a law student, sued the government last year over delays in carrying out a national climate change policy that could help reduce the heavy floods and droughts that threaten the country’s food and energy security, as well as the Leghari family’s farm.
A court ordered the Pakistani government in September to form a climate change commission to address what Justice Syed Mansoor Ali Shah said “appears to be the most serious threat facing Pakistan.”
In November, the farmer in Peru, Saul Luciano Lliuya, sued the German utility RWE for its proportional contribution to global climate change. The effects of increasingly extreme weather such as drought can make farming a more precarious proposition, but Mr. Luciano’s fears are focused on Palcacocha Lake, which sits above his town and farm and is being filled to overflowing, he said, by meltwater from nearby glaciers.
“We could see the glaciers melting,” he said. “They were disappearing year by year. Somebody has to be made responsible.”
An engineer he knew put him in touch with the environmental groupGermanwatch, which found him a German lawyer. While it might seem bizarre for a farmer in Peru to sue a utility in Germany, Noah Walker-Crawford, an adviser to the group, said Germany’s laws seemed auspicious for such a suit.
“It would be quite difficult to sue in the U.S. or Saudi Arabia,” he said.
The German courts have accepted the case, but a representative of the company, Klaus-Peter Kress, said, “RWE does not see a legal basis for this type of claim.”
In New Zealand, a law student, Sarah Lorraine Thomson, said she had been inspired to take legal action by the Our Children’s Trust suit and a 2015 decision by a court in the Netherlands that ordered the Dutch government to take more forceful action to reduce greenhouse gas emissions.
“Hearing about those cases was a kick in the butt — they were just ordinary people, too — I felt that I really had no excuse,” Ms. Thomson wrote in an email.
Her lawsuit against the New Zealand government has been filed, and she has received affidavits from lawyers from the crown, but no hearing date has been set.
Ms. Olson of Our Children’s Trust said that the cases in the United States and abroad “build on one another.”
Xiuhtezcatl Martinez, a 16-year-old high school student and hip-hop artist from Boulder, Colo., who became a plaintiff in the Oregon case after getting involved in one of the state lawsuits sponsored by Our Children’s Trust, said that because “climate change is really the defining issue of our time, there is no lawsuit of greater importance happening anywhere in the country.”
If this suit fails, he said, he expects new ones will be filed. “The evidence will only get stronger,” he added.
Some of the arguments in the Oregon lawsuit surprised legal experts.
“The constitutional claims are novel, to say the least,” said David M. Uhlmann, a former federal prosecutor of environmental crimes who teaches law at the University of Michigan. “I have a hard time seeing the case succeeding in the Supreme Court, if it gets that far, and it may not even survive review in the Ninth Circuit.”
Cases that extend rights in innovative ways tend to be long shots. A lawsuit brought against fossil fuel companies and utilities by the citizens of Kivalina, Alaska, a coastal town battered by climate forces, was dismissed by the United States Court of Appeals for the Ninth Circuit in 2009.
But courts do blaze new paths, establishing rights to, for example,same-sex marriage.
“Most novel arguments crash and burn, but some soar,” Professor Gerrard said. “It’s often hard to predict in advance which is which.”
http://www.nytimes.com/2016/05/11/science/climate-change-citizen-lawsuits.html?_r=0
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