Preview Newsletter
ACC 18/8/16
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(ACC Mentioned) The Broken Science Behind Proposition 65
Aug 8, 2016 | Law 360
By Jeffrey D. Dintzer and Dana Lynn Craig
California’s Safe Drinking Water and Toxic Enforcement Act of 1986, known by its more popular name as Proposition 65, is in need of a critical overhaul after 30 years of capricious enforcement. -
US CPSC Proposes Phthalate Testing Exemption For Certain Plastics
Aug 18, 2016 | Chemical Watch
The Consumer Product Safety Commission (CPSC) has proposed a rule that would exempt certain plastics in children's products from mandatory third-party phthalate testing. -
(ACC Mentioned) Chemical Catalysts Could Help Realize Shale Gas Potential: Report
Aug 18, 2016 | BNA Daily Environment Report
By Pat Rizzuto
New chemical catalysts could help the U.S. realize even more of the economic, energy and environmental potential arising from shale gas, according to a workshop report released Aug. 17. -
Emissions From Natural Gas Projected to Surpass Coal
Aug 18, 2016 | BNA Daily Environment Report
By Ari Natter
Natural gas is expected to be the power sector's No. 1 source of carbon dioxide emissions this year, reaching another milestone after surpassing coal as the country's main source of electricity generation, the Energy Department said Aug. 17. -
Clinton Pick Of Salazar Irks Anti-Fracking Groups
Aug 17, 2016 | PoliticoPro
By Esther Whieldon
Hillary Clinton may be opening gaps in crucial swing states over Donald Trump, but some environmentalists bristled at her decision to tap former Interior Secretary and Colorado Sen. -
Texas Falls Short in Regulating Oil/NatGas Industry, Watchdog Group Says
Aug 17, 2016 | Natural Gas Intelligence
By Joe Fisher
In advance of a public hearing on Railroad Commission of Texas (RRC) practices and operations scheduled for Monday, watchdog group Public Citizen has rolled out its wish list of reforms it would like to see at the oil/natural gas regulator. -
EPA: Fridge Ruling Helps Carbon Rule Defense
Aug 17, 2016 | PoliticoPrp - Whiteboard
By Alex Guillen
EPA says its legal defense of the Clean Power Plan just got some backup — from a panel of GOP-appointed judges who gave a thumbs up in an unrelated case to the administration’s use of the “social cost of carbon,” the calculation that assigns a dollar value to the damage caused by carbon pollution. -
Gas Pipeline Costs Can't be Shifted to Ratepayers: Court
Aug 18, 2016 | BNA Daily Environment Report
By Martha W. Kessler
The Massachusetts Department of Public Utilities (DPU) doesn't have the authority to pass the cost of building new pipelines on to ratepayers, the state's highest court ruled (Engie Gas & LNG LLC v. Dep't. of Public Utilities, Mass., SJC-12051, 8/17/16). -
Industry, Greens Tear Apart Legal Challenges To Ozone Rule
Aug 17, 2016 | E&E News PM
By Amanda Reilly
Environmental advocates and industry groups today attempted to undermine each other's legal arguments in the litigation over U.S. EPA's national ambient air quality standard for ozone pollution. -
Industry, State Ozone Claims Already Decided: Advocates
Aug 18, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Courts have previously rejected legal arguments raised by industry organizations and states that oppose the 2015 ozone standards, according to a coalition of environmental advocacy organizations (Murray Energy Corp. v. EPA, D.C. Cir., No. 15-1385, briefs filed 8/17/16). -
Environmentalists, Industries Spar Over Ozone NAAQS
Aug 17, 2016 | Inside EPA
Environmentalists are sparring with groups representing major industrial sectors in litigation over EPA's tightened ozone national ambient air quality standard (NAAQS), with advocates saying the stricter limit is justified -- even though they support a tighter-still NAAQS -- while industry says there is no basis for the more-stringent standard. -
The National Security Case Against TPP
Aug 17, 2016 | The Hill - Congress Blog
By John Adams
The Republican and Democratic conventions showcased an extraordinarily rare point of bipartisan consensus: stopping the Trans-Pacific Partnership (TPP). Yet, in the dog days of summer, Americans have received a rude awakening that the unpopular 12-nation trade deal is still on the table. This past Friday, President Obama put Congress on notice that a vote on TPP is coming in the lame duck period after the election.
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(ACC Mentioned) The Broken Science Behind Proposition 65
Aug 8, 2016 | Law 360
By Jeffrey D. Dintzer and Dana Lynn Craig
California’s Safe Drinking Water and Toxic Enforcement Act of 1986, known by its more popular name as Proposition 65, is in need of a critical overhaul after 30 years of capricious enforcement. The law, according to the Office of Environmental Health Hazard Assessment (OEHHA), has a singular goal — to “protect[] the state's drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform Californians about exposures to such chemicals.”[1] And while this mission may seem noble, the application of this poorly drafted initiative is nothing less than a categorical failure.
The law has done virtually nothing to advance protection of California’s water supplies — which are closely guarded by the Federal Safe Drinking Water Act, and the state’s enforcement of that act under its primacy agreement with the U.S. Environmental Protection Agency. We simply do not need Proposition 65 to ensure our drinking water is clean — the U.S. Congress enacted laws over a decade before the initiative was presented to the voters to address our water supply.
Further, enforcement of the warning provisions of Proposition 65 has created a cottage industry for indolent plaintiffs attorneys, and has provided virtually no benefit to consumers who have been so over-cautioned they simply ignore the warnings. When was the last time you refused to visit your local market or pump gas at a filling station — all of which carry Proposition 65 warnings?
When explaining the purpose of Proposition 65, the OEHHA notes its dual purpose: “(1) Proposition 65 requires business to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm ... (2) Proposition 65 also prohibits California businesses from knowingly discharging significant amounts of listed chemicals into sources of drinking water.”[2]
The efficacy of Proposition 65, then, rises and falls with the legitimacy of the listing process of those chemicals to which the law applies. The bloated nature of that list — which stands at over 900 chemicals now[3] — suggests a broken system that refuses to discriminate those chemicals that will actually cause harm from those that are inert.
Proposition 65 allows the state bureaucracy to exercise its own scientific discretion to list substances, but the methodology applied is inadequate and leads to inaccurate results, creating a legacy of flouting federal agencies’ advice and making findings contrary to solid scientific research. It’s time for California to take a hard look at the scientific method (colloquially speaking) that it applies to implementing this law before the list further balloons with chemicals which have no place on the list.
There are four ways in which a chemical can find itself on the Proposition 65 list,[4] the one at issue here is the so-called “State’s Qualified Experts,” constituting two committees — the Carcinogen Identification Committee (CIC) and the Developmental and Reproductive Toxicant Identification Committee (DARTIC).[5] These committees have the power to “find that a chemical has been clearly shown to cause cancer or birth defects or other reproductive harm.”[6]
Sadly, their discretion to do so is utterly unchecked, as they need not defer to findings that a chemical is, in fact, safe, frequently ignoring good studies, and the conclusions of other scientific bodies that have exhaustively reviewed the chemical’s safety profile.[7] This unbounded discretion makes the committees’ failure to commit to a thorough, legitimate scientific analysis of these substances indefensible. The current system requires change.
As noted previously, the state committees may disregard the research and conclusions of other entities that led to determinations that a given chemical was safe. One recent controversy that arose as a direct result of this wide latitude involved the state’s decision to list Bisphenol A (BPA) under Proposition 65. BPA is used to make a certain kind of plastic, one often found in consumer productions, including food packaging.[8]
BPA use in food packaging dates back to the 1960s.[9] The U.S. Food and Drug Administration, in contrast to the state’s BPA listing decision, affirms that “based on its most recent safety assessment ... BPA is safe at the current levels occurring in foods. Based on the FDA’s ongoing safety review of scientific evidence, the available information continues to support the safety of BPA for the currently approved uses in food containers and packaging.”[10] The European Union’s food safety agency has found similarly.[11]
Similarly, a member of the Polycarbonate/BPA Global Group of the American Chemistry Council “strongly disagree[d]” with the BPA listing and argued that it was in direct contradiction to the science “presented to the committee” and the FDA’s input.[12] In fact, the FDA’s acting chief scientist also provided the committee with information contrary to its ultimate decision to list BPA.[13]
If the committees are so willing to make findings that fly in the face of contrary information, there is either something wrong, or the latitude of discretion must be significantly cut back. Either way, a discerning look at their processes for evaluating the science must be had. It’s disturbing from any angle. The OEHHA website summarizes the committee diligence as follows: “The committees base their decisions on the most current scientific information available. OEHHA staff scientists compile all relevant scientific evidence on various chemicals for the committees to review. The committees also consider comments from the public before making their decisions.”[14]
But when this succinctly stated process is examined, this description is inaccurate and the methods inadequate. For example, one of the state committees determined that five chemicals were to be considered for the Proposition 65 list, including benzo(a)pyrene and uranium.[15] The committee’s decision was supported by a literature review that had been limited to only the titles and/or abstracts of certain studies.[16] The same critique of the process found that OEHHA relied on “dated” information.[17] In the case of Hexafluroacetone, the OEHHA’s review consisted of studies that had been put out over an astonishing time frame from 1979 through 1991.[18]
Proposition 65’s science can be just as surface-level as the committees’ diligence, leading to questionable conclusions about risk. According to the OEHHA, “[b]y law, a warning must be given for listed chemicals unless exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.”[19] The agency goes on to define “no significant risk level” relevant to listings related to cancer as “the level of exposure that would result in not more than one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime.”[20]
Yet, it has been pointed out that the law does not adequately distinguish between containing a chemical and the actual exposure to that chemical.[21] In fact, the law has been likened to “the epitome of the precautionary principle”[22] and disregards a bedrock principle of toxicology — the dose makes the poison. In fact, the latter failing can lead to results that would be comical, if they weren’t so unnecessarily costly to businesses and California taxpayers.
In an oft-cited example, Proposition 65 requires labeling for French fries due to the acrylamide listing. But to reach dangerous levels, one would have to eat 182 pounds of French fries each day for life — a laughable impossibility. While such examples can be humorous, they are serious enough to have caused the FDA to write to the California attorney general criticizing Proposition 65’s disregard for the amount of the substance required to reach danger levels.[23] That letter was sent in 2005,[24] however, and quite clearly had no effect.
And with all these ways of getting it wrong —— both procedurally and substantively — at least the chemicals can be delisted. But how? It’s certainly not easy — procedurally or substantively. In fact, a review of the OEHHA website provides a quick indication that listing is the priority here, not cleaning up mistakes in those listings. The very first “Quick Link” offered on the page is to “Adding Chemicals to the Prop. 65 List.”[25] It’s not until one reaches the very bottom of that page that there is some information about delisting.[26] Delisting is apparently so difficult that, not surprisingly, toxicological and epidemiological experts must be hired to even get consideration for delisting.
Proposition 65 simply cannot fulfill its stated mission if the science behind it is broken. And it certainly cannot be fixed by the arduous delisting procedure, targeting those chemicals that should never have been placed on the list in the first place. The law must be fundamentally reformed so that only proper substances make it onto the list in the future. The concept is simple — decisions to list chemicals must be based on sound science. But how does California get there?
Potential changes would not be difficult. In fact, perhaps the most effective change would scale back on the bureaucracy behind the law. Aside from the state’s committees, there are three other ways in which chemicals become listed:
Those “identified by reference in Labor Code Section 6382(b)(1) or (d)” are incorporated (Section 6382(b)(1) “incorporates chemicals identified by the World Health Organization’s International Agency for Research on Cancer (IARC) as causing cancer in humans or laboratory animals”);
Those identified by “authoritative bodies” as qualifying (the authoritative bodies include the U.S. EPA, IARC, U.S. FDA, the National Toxicology Program of the U.S. Department of Health and Human Services, and the National Institute for Occupational Safety and Health); and
Those required by the state or federal government (the majority of these are prescription drugs required to be listed by the FDA).[27]
The state committees’ work stands in stark contrast to these other three means for chemicals being listed. The state committees must not be allowed to ignore contrary scientific evidence and conclusions from other authoritative entities, particularly when the state committees’ diligence in making their own decisions is so cursory. The easiest solution is to rely on the entities (or laws) that are committed to these scientific determinations, many of them listed above as “authoritative bodies” and use their conclusions to make listing decisions.
Should the committee system stay in place, they must commit to real risk assessment for chemical carcinogenicity, conducted by independent groups of qualified scientists, or learn and adopt the methods used by the entities listed above. It makes little sense for the state to trust the assessments of these other entities for three of the four avenues for listing, but to allow the state committees to ignore those same entities’ findings that a substance is safe.
California should leave the science to those who conduct the proper diligence to make sound conclusions or mandate that its own committees adopt the methodologies of those authoritative bodies. And all of the good science and findings of other scientific bodies such as the Academy of Science must be incorporated into such decision making. Proposition 65 will continue to be ineffective and its conclusions inaccurate until its procedures are fixed, allowing for credible scientific conclusions to support it as it heads into another decade of enforcement.http://www.law360.com/articles/825882?sidebar=true
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US CPSC Proposes Phthalate Testing Exemption For Certain Plastics
Aug 18, 2016 | Chemical Watch
The Consumer Product Safety Commission (CPSC) has proposed a rule that would exempt certain plastics in children's products from mandatory third-party phthalate testing.
The Consumer Product Safety Improvement Act (CPSIA) prohibits concentrations above 0.1% of six phthalates in the accessible parts of various children's products. The substances are:DEHP;DBP;BBP;DINP;DIDP; andDnOP.
Third-party testing must be conducted demonstrating compliance with this content limit before an item can be placed on the market.
However, the proposed rule calls for exempting the following from mandatory tests:polypropylene;polyethylene;high impact polystyrene; andacrylonitrile butadiene styrene (ABS).
The proposal follows a study by a CPSC contractor. It found that the banned phthalates are not used in these plastics, their raw materials, or in the types of additives they might contain above the allowable limit.
The 0.1% limit would not be affected by the proposal.
Congress's 2011 passage of Public Law 112-28 directed the agency to seek ways to reduce the burdens that mandatory testing brings.
The Toy Industry Association (TIA), which has pushed for the CPSC to reduce the burden of third-party testing, says that the rule "will likely have a positive impact on the toy industry by reducing testing costs".
The commission has made some progress in reducing burdens elsewhere, in areas such as testing requirements for untreated wood and lead in certain textiles.
But the TIA has flagged up reductions of phthalate testing as an area that would provide the greatest relief to the industry.
Comments on the proposed rule will be accepted until 31 September.
https://chemicalwatch.com/49186/us-cpsc-proposes-phthalate-testing-exemption-for-certain-plastics
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(ACC Mentioned) Chemical Catalysts Could Help Realize Shale Gas Potential: Report
Aug 18, 2016 | BNA Daily Environment Report
By Pat Rizzuto
New chemical catalysts could help the U.S. realize even more of the economic, energy and environmental potential arising from shale gas, according to a workshop report released Aug. 17.
The National Academies of Sciences, Engineering and Medicine released a report summarizing a March workshop it held to discuss new catalysts that could help convert natural gas and natural gas liquids into high-value chemicals with a lower carbon footprint than results from the traditional use of heavier petroleum based feedstocks.
The market is demanding new catalysts that can convert natural gas and natural gas liquids into industrially important chemicals, according to the report.
This demand is driven, it said, by abundant domestic supplies of the lighter hydrocarbons in natural gas and natural gas liquids resulting from the dramatic rise in shale gas production.
The U.S. Department of Energy, National Science Foundation, American Chemistry Council , Dow Chemical Co. and SABIC, the Saudi Basic Industries Corp. sponsored the March workshop.
Specific Areas of Needed Research
Following information exchanged at the academies' workshop, participating chemical engineers and other scientists recommended research be conducted on more than a dozen topics including the development of different types of catalysts that could convert methane, a key constituent of natural gas, into commercial chemicals.
A critical element of the research would involve converting the methane, a very potent greenhouse gas, into the desired chemicals without producing carbon dioxide, another greenhouse gas.
Analyses of the environmental impacts of novel catalysts and catalytic technologies should be broadened to include water use, carbon dioxide emissions and other factors that are not always considered, the report summarized some workshop participants as saying.
Opening Doors
The research recommended in the academies' report mirrors recommendations the American Chemistry Council has heard from its members and companies with which it has discussed the changing energy supply, Michelle Orfei, director of global affairs for the council , told Bloomberg BNA Aug. 17.
Not only is the report useful validation, but it may open the doors for further discussions on research opportunities between industry and government scientists, she said.
Catalysts are substances added to chemicals or materials to increase the rate of chemical reactions. Enzymes in laundry detergents, which allow the detergent to work in cold water, are an example of a type of catalyst that uses less energy than would be needed to get clothes clean with warm or hot water.
Catalysts are used for about 90 percent of the processing of feedstock materials that eventually produce chemicals, and there is enormous potential for additional energy savings, according to ablog post the chemistry council published in February. It called for a sustained and coordinated research effort among industry, academia and government.
Shale Gas and Chemical Production
Ten years ago the U.S. chemical industry was in decline, the workshop report said.
“Largely as a result of the shale gas boom,” U.S. jobs related to plastics manufacturing alone are expected to grow by 462,000 or more than 20 percent over the next decade, it said, citing chemistry council statistics.
As of September 2015, 246 chemical processing facilities were being planned in the U.S. representing $153 billion in potential capital investments, the workshop report said.
“The U.S. chemical industry has gone from the highest-cost producer in 2005 to among the lowest-cost producers today,” the report said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95970921&vname=dennotallissues&wsn=499766000&searchid=28227470&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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Emissions From Natural Gas Projected to Surpass Coal
Aug 18, 2016 | BNA Daily Environment Report
By Ari Natter
Natural gas is expected to be the power sector's No. 1 source of carbon dioxide emissions this year, reaching another milestone after surpassing coal as the country's main source of electricity generation, the Energy Department said Aug. 17.
Energy-associated carbon dioxide emissions from natural gas are expected this year to surpass those from coal for the first time since 1972, the Energy Information Administration said in a blog post Aug. 17.
Though natural gas is less carbon-intensive than coal, increases in natural gas consumption and decreases in coal consumption have resulted in the emissions change, according to the agency, which projects carbon emissions from natural gas will be 10 percent greater than those from coal in 2016.
The consumption of natural gas results in about 52 million metric tons of carbon dioxide for every quadrillion British thermal units (MMmtCO2/quad Btu), while coal's carbon intensity is about 95 MMmtCO2/quad Btu, or about 82% higher than natural gas's carbon intensity, the EIA said.
According to the agency, in 2016, natural gas is expected to fuel 34 percent of electricity generation, compared to 30 percent for coal.
Carbon dioxide emissions from energy production are still expected this year to decline to their lowest level since 1992 because of the switch from natural gas to coal, the agency said earlier this month.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95970911&vname=dennotallissues&fn=95970911&jd=95970911
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Clinton Pick Of Salazar Irks Anti-Fracking Groups
Aug 17, 2016 | PoliticoPro
By Esther Whieldon
CLINTON PICK OF SALAZAR RAISES SOME EYEBROWS: Hillary Clinton may be opening gaps in crucial swing states over Donald Trump, but some environmentalists bristled at her decision to tap former Interior Secretary and Colorado Sen. Ken Salazar to chair her transition team. Clinton has sought to reassure greens that she'll go further on restricting oil and gas activities than President Barack Obama has, but the Salazar pick is raising new friction with some of Sen. Bernie Sanders former backers. Salazar has defended the safety of fracking for oil and natural gas, which irks some green groups.
Story Continued Below
Salazar's alliances questioned: Greenpeace USA Democracy Campaign Director Molly Dorozenski criticized Salazar as being too cozy with business interests, which would weaken Clinton's progressive policies. "Salazar’s track record illustrates time and again that he is on the side of big industry, and not of the people," Dorozenski said.
"Grassroots climate advocates and landowners concerned about fracking and eminent domain are looking for clues that Secretary Clinton is taking us seriously," said Jane Kleeb, president of the green group Bold Alliance and a leader of the campaign that killed the Keystone XL oil pipeline. "We have yet to see anyone reflected in top leadership that has our backs."
Still, some other environmental groups took a more restrained tone. Tiernan Sittenfeld, senior vice president of the League of Conservation Voters, said Salazar "has been a longtime environmental ally as a senator and as Secretary of the Interior." LCV is confident that Salazar and others "will lead a transition team that is absolutely committed to fighting climate change and protecting our air, land and water."
https://www.politicopro.com/tipsheets/morning-energy/2016/08/clinton-pick-of-salazar-irks-anti-fracking-groups-018797#ixzz4Hg8SjYTA -
Texas Falls Short in Regulating Oil/NatGas Industry, Watchdog Group Says
Aug 17, 2016 | Natural Gas Intelligence
By Joe Fisher
In advance of a public hearing on Railroad Commission of Texas (RRC) practices and operations scheduled for Monday, watchdog group Public Citizen has rolled out its wish list of reforms it would like to see at the oil/natural gas regulator.
"Other oil and gas states have stronger mandates to protect public health and the environment," said Carol Birch, legislative counsel for Public Citizen's Texas office. "States that do better in regulating the industry require more frequent inspections and have fines large enough to deter violations.
"Other states also have stronger ethics protections. Oklahoma, for example, strictly limits campaign contributions from the oil and gas industry to prevent conflicts of interest. Compare that to Texas, whose commissioners take industry contributions all year long, even when not running for election."
Birch's assertions are based on a recent study of regulatory practices in other states conducted by Public Citizen. The group said RRC "should undergo significant changes in structure, transparency, funding, inspections and environmental protection."
The study looked at the best practices of eight states besides Texas that produce oil and gas: Colorado, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, West Virginia and Wyoming. Public Citizen said it chose a cross-section of oil and gas states facing similar issues as Texas. The study examined regulatory practices ranging from ethics and transparency to fines and funding to inspections and environmental protections.
"Compared to the states we studied, it is clear that the regulatory practices and agency structure of the RRC need a serious overhaul," said Tom Smith, director of Public Citizen's Texas office. "The RRC mission statement promises to serve Texas through protecting the public, the environment and natural resources. This study shows it has a long way to go before fulfilling that mission."
RRC is again undergoing a state Sunset Advisory Commission review. Such reviews are normally conducted every 12 years and are intended to reconfirm the usefulness of state agencies and consider recommendations for changes.
As with past RRC Sunset reviews, the most prominent recommendation for reform this time around is a name change for the agency to something that would more accurately reflect its involvement in oil/natural gas and non-involvement in railroads. Another half-dozen recommendations by the Sunset Advisory Commission staff are to be considered as well (see Daily GPI, May 2).
In large part, Public Citizen said it supports the staff recommendations. "However, because the RRC has failed in many important ways to protect the public and the environment, Public Citizen is proposing additional recommendations to create more effective, efficient and democratic management of the RRC, and to hold the agency accountable to its mission statement," it said.
Public Citizen recommends that the RRC structure be changed, with the possibility of appointing the three commissioners instead of electing them. Public Citizen also recommends "...limiting campaign contributions, finding ways to address conflicts of interest when commissioners have industry ties and changing the name of the agency because it has not overseen Texas railroads for years."
The group also is calling for greater transparency at the agency. "This includes creating a searchable database of inspections, complaints and enforcement actions, including fines and penalties, against individual operators, on the RRC website -- as many other states have done; fixing the nonexistent RRC performance measures; correcting misleading statistics on the RRC website; and reducing the amount of time, currently 12 years, before the next Sunset Review is conducted," Public Citizen said.
Additionally, compared to other states, RRC has lower bonding requirements and lower permitting fees levied on operators, which "wrongly" places the financial burden on the public when the industry is noncompliant, Public Citizen said. Penalties for noncompliance should be increased to deter violations, it added.
"The RRC lacks sufficient inspectors to examine all the states wells even once a year. It should impose an annual inspection fee to help cover the cost of overseeing the industry. Additionally, the RRC should require inspections and surveillance procedures to be independent of information supplied by industry operators.
"There is a striking difference between the RRC mission statement and what the agency does. To fix this, the RRC should create an environmental advocate position at the RRC and provide greater opportunities for public input and participation."
While Public Citizen is calling for greater accountability to the public, the RRC itself is in the process of instituting reforms to lighten the regulatory burden on industry. Commissioner Christi Craddick earlier this month outlined a number of changes she said would relieve operators of undue burdens during the ongoing depressed commodity price environment (see Daily GPI, Aug. 10). The attitude of industry accommodation is not likely to sit well with Public Citizen.
"The RRC should not be allowed to bend over backwards to benefit industry at the citizens' expense," Smith said Wednesday. "And for the sake of the environment and our residents, the RRC cannot coast along for another 12 years without review to see if needed reforms have been implemented."
The Sunset Advisory Commission public hearing, which is to be live streamed over the internet, is open to the public and scheduled for 9:00 a.m. CDT Monday in Austin.
http://www.naturalgasintel.com/articles/107443-texas-falls-short-in-regulating-oilnatgas-industry-watchdog-group-says
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EPA: Fridge Ruling Helps Carbon Rule Defense
Aug 17, 2016 | PoliticoPrp - Whiteboard
By Alex Guillen
EPA says its legal defense of the Clean Power Plan just got some backup — from a panel of GOP-appointed judges who gave a thumbs up in an unrelated case to the administration’s use of the “social cost of carbon,” the calculation that assigns a dollar value to the damage caused by carbon pollution.
That ruling came last week from 7th Circuit Court of Appeals, which upheld an Energy Department efficiency regulation covering commercial refrigerators.
In a brief letter today to the D.C. Circuit, which will hear arguments on the CPP next month, the Obama administration said the three-judge panel from the 7th Circuit sided with DOE's arguments that climate change represents a "global externality" and said that DOE had acted "reasonably" in comparing planetary benefits and national costs in its refrigerator rule.
Republicans and other critics of the SCC complain that while the costs are borne domestically, the benefits are weighed globally.
EPA says that the CPP's opponents did not challenge the actual cost analysis EPA used when it set power plant emission limits. Instead, the agency says they attacked a cost-benefit analysis used to satisfy an executive order requiring such studies.
Even if they had gone after the right analysis, EPA says the 7th Circuit's ruling would still support its defense because "EPA (like Energy) reasonably explained why its monetized benefit-cost analysis accounted for global benefits." The agency also said it used a more “slightly updated” version of the SCC than DOE did in its 2014 efficiency rule.
https://www.politicopro.com/energy/whiteboard
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Gas Pipeline Costs Can't be Shifted to Ratepayers: Court
Aug 18, 2016 | BNA Daily Environment Report
By Martha W. Kessler
The Massachusetts Department of Public Utilities (DPU) doesn't have the authority to pass the cost of building new pipelines on to ratepayers, the state's highest court ruled (Engie Gas & LNG LLC v. Dep't. of Public Utilities, Mass., SJC-12051, 8/17/16).
The decision by the Massachusetts Supreme Judicial Court (SJC) was a setback for the administration of Gov. Charlie Baker (R), who believes that meeting the region's energy needs without raising costs for consumers requires additional natural gas capacity.
In a 37-page decision issued Aug. 17, the court said the DPU doesn't have the authority to review and approve ratepayer subsidized, long-term contracts by electric utility companies for natural gas pipeline capacity.
According to the opinion written by Justice Robert Cordy prior to his retirement, DPU's 2015 rule (“Order 15-37”) allowing Massachusetts electric customers to be charged for the construction of interstate gas pipelines is prohibited by state statutes.
Cordy said that Order 15-37 is “invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring act, because, among other things, it would undermine the main objectives of the act and reexpose ratepayers to the types of financial risks from which the Legislature sought to protect them.”
The court had consolidated a pair of cases brought by ENGIE Gas & LNG LLC and by the Conservation Law Foundation (CLF)) in which they challenged a 2015 order issued by the DPU. Earlier this year, Massachusetts Attorney General Maura Healey (D) filed an amicus brief arguing that the DPU didn't have authority under existing law to allow electric distribution companies to enter into ratepayer-backed natural gas transportation contracts.
Healey Applauds Court's Ruling
Healey said in a statement Aug. 17 that the court's decision “confirms our longstanding position that existing law bars electric distribution companies from using ratepayer money to foot the bill for natural gas pipelines. Requiring electric ratepayers to pay for new natural gas pipeline capacity effectively shifts the risks associated with building these projects to ratepayers, contrary to the state's policies of the past two decades.”
She added: “We know from our 2015 electric reliability study that there are cleaner and more affordable options for meeting our energy needs. The Court's decision makes clear that if pipeline developers want to build new projects in this state, they will need to find a source of financing other than electric ratepayers’ wallets.”
David Ismay, CLF's lead attorney on the case, called the ruling “an incredibly important and timely decision.”
“Today our highest court affirmed Massachusetts’ commitment to an open energy future by rejecting the Baker Administration's attempt to subsidize the dying fossil fuel industry,” Ismay said in a statement. “The course of our economy and our energy markets runs counter to the will of multi-billion dollar pipeline companies, and thanks to today's decision, the government will no longer be able to unfairly and unlawfully tip the scales in their favor.”
Can Use LNG, Diversification to Meet Needs
The court's decision was also applauded by ENGIE Gas. Company spokeswoman Carol Churchill told Bloomberg BNA in an e-mail Aug. 17 that the decision means electric ratepayers should not be required to “bear the risk of these multi-billion contracts.”
“We continue to believe that Massachusetts and New England's natural gas capacity needs can be met most efficiently by existing LNG infrastructure available to the region, diversifying the region's portfolio into renewables, and continuing to encourage and reward energy efficiency and energy storage,” Churchill said. “The state and region are clearly headed in the right direction, and this decision will allow us to continue on this path.”
Massachusetts Senate President Stanley Rosenberg also applauded the SJC ruling.
“The SJC got it right. Existing law prohibits passing the cost of building new pipelines onto ratepayers,” Rosenberg said in a statement Aug. 17. “When the Massachusetts Senate debated the energy bill this session, the Senate voted 39-0 to prohibit utility companies from passing the cost of building new infrastructure on to ratepayers. To do otherwise would have been unprecedented and contrary to the best interests of the Commonwealth. Ratepayers deserve to have confidence that the matter is settled, and now they do.”
Company Accepts Ruling
Eversource Energy, which has filed an amicus brief in the case, said in a statement while the company respects the court's decision, “it leaves the region in a precarious position without sufficient gas capacity for electric generation during cold winters—which drives electricity prices up for our customers.”
“We've been working with Spectra and National Grid to address this issue,” company spokeswoman Caroline Pretyman told Bloomberg BNA Aug. 17. “Access Northeast is a solution that could save New Englanders approximately $1 billion a year—savings that help consumers and businesses stay competitive. The project would also displace oil and coal-fired generation with cleaner-burning natural gas—reducing regional emissions and improving the environment.”
“While the Court's decision is certainly a setback, we will re-evaluate our path forward and remain committed to working with the New England states to provide the infrastructure so urgently needed to ensure reliable and lower-cost electricity for customers,” she said.
Massachusetts Rates Among Nation's Highest
Peter Lorenz, a spokesman for the Massachusetts Executive Office of Energy and Environmental Affairs, said in an e-mail to Bloomberg BNA, “Massachusetts has some of the highest electricity rates in the nation and without additional gas capacities and a diverse energy portfolio, the trends will continue to rise overtime.”
“The Department of Public Utilities respects the Supreme Judicial Court's decision, and while the federal government remains the deciding authority on pipeline siting decisions, the Baker-Polito Administration believes meeting the region's energy demands without raising costs for consumers requires additional natural gas along with the wind and hydroelectric power provisions recently signed into law,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95970924&vname=dennotallissues&fn=95970924&jd=95970924
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Industry, Greens Tear Apart Legal Challenges To Ozone Rule
Aug 17, 2016 | E&E News PM
By Amanda Reilly
Environmental advocates and industry groups today attempted to undermine each other's legal arguments in the litigation over U.S. EPA's national ambient air quality standard for ozone pollution.
In competing briefs filed in the U.S. Court of Appeals for the District of Columbia Circuit, both a group of environmental and a group of industry intervenors said the court should reject the other's arguments on the standard.
Environmentalists and industry organizations are in an interesting spot in the ozone litigation. On one hand, they're both suing EPA over the standard. On the other, they're forced to defend EPA against the litigation from the other side.
The D.C. Circuit has combined all the challenges into one massive case.
At issue is EPA's decision last year to lower the ozone standard from 75 parts per billion, which was set during the George W. Bush administration, to 70 ppb. Ozone is a key component of smoggy air that forms when nitrogen oxides and volatile organic compounds react in sunlight.
Environmental and public health groups have sued EPA on the grounds that the new standard is too weak to protect public health. Today they filed an intervenor brief on behalf of EPA pushing back against industry claims that the agency should have considered achievability and costs.
The brief from the American Lung Association, the Sierra Club, the Natural Resources Defense Council and Physicians for Social Responsibility relies heavily on "substantial case law" to argue that industry and state challenges to the standard are "baseless."
Industry opponents are "recycling" old arguments made in past court cases, the environmentalists' brief charges.
"EPA's decision to strengthen the health- and welfare-protective standards for ozone was not only reasonable," the groups' court brief says, "but compelled by overwhelming evidence that ozone is harmful at levels allowed by the prior standards."
The brief argues that, in 2001, the Supreme Court ruled — counter to industry claims — that costs should not play a role in EPA's decision on where to set the standard. In Whitman v. American Trucking Associations Inc., the high court also rejected arguments that Congress had impermissibly delegated legislative authority to EPA through the Clean Air Act.
Most recently, environmental and public health advocates note, the D.C. Circuit in 2013 upheld EPA's prior primary ozone standard.
In Mississippi v. EPA, the D.C. Circuit rejected an industry argument that EPA failed to explain why it lowered the standard based on the scientific evidence that was available at the time.
"This Court held there is no legal requirement for a sea-change in understanding of ozone before EPA can find a more protective standard is requisite," the environmentalists' brief says.
In the 2013 case, the court also remanded EPA's secondary ozone standard that's meant to protect public welfare and ecosystems.
The coalition of business and industry groups, which include the U.S. Chamber of Commerce, National Association of Manufacturers and American Petroleum Institute, today fought back against environmental advocates' claims that the 70 ppb standard was too weak.
Their brief, also on behalf of EPA, rejects arguments that the new standard allows for higher exposure levels than those EPA found cause adverse effects, particularly in asthmatics.
The business groups' brief also relies on Mississippi v. EPA to bolster their arguments. According to the groups, environmentalists made similar arguments in that case — which the court rejected — that studies done in 2002 and 2006 showed that adverse health effects would occur at a level lower than EPA's standard.
Business groups also today argued that EPA's explanation of how it used advice from its scientific advisers is consistent with the 2013 court decision.
The brief notes that the business and industry entities still believe EPA's decision to lower the ozone standard was unlawful and that they shouldn't be construed as endorsing the 70 ppb level.
"At the same time," the brief says, "Industry Respondent-Intervenors have a strong interest in demonstrating that the arguments of Environmental Petitioners that EPA was required to make [the standard] even more stringent, as well as their other arguments, are without merit."
EPA has argued that its standard is neither too weak nor too stringent (Greenwire, Aug. 1).
http://www.eenews.net/eenewspm/2016/08/17/stories/1060041750
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Industry, State Ozone Claims Already Decided: Advocates
Aug 18, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Courts have previously rejected legal arguments raised by industry organizations and states that oppose the 2015 ozone standards, according to a coalition of environmental advocacy organizations (Murray Energy Corp. v. EPA, D.C. Cir., No. 15-1385, briefs filed 8/17/16).
Many states, as well as the U.S. Chamber of Commerce, the National Association of Manufacturers and other industry organizations, asked the U.S. Court of Appeals for the District of Columbia Circuit to vacate the Environmental Protection Agency's decision to revise the national ozone standards from 75 parts per billion to 70 ppb.
The arguments advanced by opponents of the more stringent ozone standards argued that the EPA issued an illegally unattainable regulation because the agency failed to properly consider high background levels and that the agency failed to consider the adverse socioeconomic and energy effects of tightening the ozone standards.
The environmental advocates, which include the American Lung Association and the Natural Resources Defense Council, argued in an Aug. 17 brief that there is “substantial case law rejecting the very same arguments” raised by the industry and state petitioners.
Findings Cited by Petitioners
The advocates pointed to several decisions by the D.C. Circuit and the U.S. Supreme Court, including the high court's unanimous 2001 holding that the Clean Air Act doesn't authorize the EPA to consider implementation costs when deciding where to set national ambient air quality standards (Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 51 ERC 2089 (2001)).
“Notwithstanding petitioners’ claims, this court and the Supreme Court have already held that EPA must establish standards based solely on protecting health and welfare and that background ozone levels and implementation costs (however dressed up) are irrelevant and illegal considerations in the standard-setting process,” the environmental advocates argued in their brief. “Were there any doubt that Whitman forecloses Petitioners’ costs and nondelegation arguments, review of the briefs in that case confirms that industry and allies there raised the arguments Petitioners here advance. Failed in Whitman, they fail here, too.”
Industry Defends EPA Rationale
In a separate brief filed Aug. 17, the same industry coalition that is challenging the 2015 ozone rule defended the EPA from arguments that the Clean Air Act required the agency to set even more protective standards.
The Sierra Club, the National Parks Conservation Association and other environmental organizations alleged that the 70 ppb ozone standards are illegal, because they aren't adequately protective of public health and the environment.
Specifically, those organizations argued that the form of the standards effectively labels communities as being in compliance even if residents in those areas were exposed to multiple days of ozone levels above 72 ppb, the level at which studies have shown adverse effects.
The industry organizations argued that the Clean Air Act doesn't require the EPA to set the national standards at a level that would prevent all exposures to concentrations linked to adverse effects. Instead, the industry groups argued, the law requires the EPA to consider other factors, including the potential frequency of those adverse health responses and how often people in the “real world” would be exposed to those levels.
Disclaimer Included in Brief
While the industry organizations defended the EPA against legal attacks from environmental groups, the industry coalition included a disclaimer in its brief: None of its arguments should be “considered an endorsement” of EPA's decision to set the standards at 70 ppb.
Briefing in the ozone litigation will continue until Sept. 19.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95970920&vname=dennotallissues&fn=95970920&jd=95970920
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Environmentalists, Industries Spar Over Ozone NAAQS
Aug 17, 2016 | Inside EPA
Environmentalists are sparring with groups representing major industrial sectors in litigation over EPA's tightened ozone national ambient air quality standard (NAAQS), with advocates saying the stricter limit is justified -- even though they support a tighter-still NAAQS -- while industry says there is no basis for the more-stringent standard.
EPA in an earlier brief filed with the U.S. Court of Appeals for the District of Columbia Circuit in the ozone suit, Murray Energy Corporation v EPA, defended the scientific justification for its Oct. 1 decision to revise the 2008 ozone limit of 75 parts per billion down to 70 ppb in order to protect public health.
Environmentalists have sued claiming that data warrant a stricter standard of 60 ppb, but they are also involved in the case as respondents trying to help EPA fend off the industry claims that there was no rationale for tightening the 75 ppb standard. The American Lung Association, Sierra Club and other groups in an Aug. 17 brief filed on the agency's behalf say “the scientific record in fact contained significant new chamber, epidemiological, and animal toxicological studies that justified an even stronger standard than EPA established,” the groups say.
They cite the D.C. Circuit's 2013 ruling in State of Mississippi v. EPA, in which the court upheld the 75 ppb “primary,” or health-based NAAQS, but remanded EPA's secondary, or welfare-based standard, set at the same level. The court deferred to EPA on the primary limit but asked for better justification of the secondary limit.
In Mississippi, the court said EPA had failed to adequately explain its decision not to pursue a secondary standard with a distinct “form,” known as W126, measured in parts per million (ppm)-hours.
The advocacy groups also reject claims from industry and some states that EPA erred by not taking naturally occurring “background” ozone levels into consideration when setting the NAAQS. The agency's critics say such ozone levels could make attaining the 70 ppb standard impossible, in violation of the Clean Air Act.
But the advocates say the D.C. Circuit “and the Supreme Court have already held that EPA must establish standards based solely on protecting health and welfare and that background ozone levels and implementation costs (however dressed up) are irrelevant and illegal considerations in the standard-setting process.”
Industry groups in their Aug. 17 brief say that EPA had ample evidence not to tighten the NAAQS further than it did, but are careful to state that also they do not endorse the 70 ppb standard. They reject environmentalists' arguments that EPA again failed to promulgate a distinct secondary standard in its 2015 rule.
“EPA determined that exposures at or below 17 ppm-hours would protect the public welfare. But EPA was under no obligation to adopt the W126 index as the form of the standard. Instead, the Agency evaluated how to achieve 17 ppm-hour or lower exposure levels under a standard that uses a traditional form and is thus implementable using the existing monitoring network. EPA’s analysis demonstrated that a 70 ppb standard, using the same form as the revised primary NAAQS, would provide that level of protection,” the industry groups say.
EPA was also fully justified in “grandfathering” air permit applications, based on meeting the 2008 ozone standard, that were already being processed when EPA issued the new NAAQS Oct. 1, they argue. Neither the air law “nor EPA’s implementing regulations contain a generic requirement that a permit applicant demonstrate compliance with a NAAQS promulgated after the filing of a complete permit application,” they say.
http://insideepa.com/news-briefs/environmentalists-industries-spar-over-ozone-naaqs
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The National Security Case Against TPP
Aug 17, 2016 | The Hill - Congress Blog
By John Adams
The Republican and Democratic conventions showcased an extraordinarily rare point of bipartisan consensus: stopping the Trans-Pacific Partnership (TPP). Yet, in the dog days of summer, Americans have received a rude awakening that the unpopular 12-nation trade deal is still on the table. This past Friday, President Obama put Congress on notice that a vote on TPP is coming in the lame duck period after the election.
While the President recently conceded that TPP critics are “coming from a sincere concern about the position of workers and wages in this country,” he's also been hammering home a familiar and often-unchallenged fallback case for trade agreements: that TPP is essential for foreign policy and national security priorities.
As a retired Brigadier General and 30-year veteran of the U.S. Army, I’ve long considered arguments for trade deals as national security strategies, including arguments for the TPP specifically as a “way to keep the peace in the Pacific” and counter China as it “flexes its economic and military muscle.” While I respect President Obama and the pact’s military backers, I believe these arguments miss a crucial point: By facilitating the further offshoring of America’s manufacturing base, the trade pact would actually undermine America’s military readiness and global economic standing. TPP would hurt our national security interests more than it would help.
In 2013, the Pentagon’s Defense Science Board put forward a remarkable report describing one of the most significant but little-recognized threats to US security: deindustrialization. The report argued that the loss of domestic U.S. manufacturing facilities has not only reduced U.S. living standards but also compromised U.S. technology leadership “by enabling new players to learn a technology and then gain the capability to improve on it.” The report explained that the offshoring of U.S. manufacturing presents a particularly dangerous threat to U.S. military readiness through the “compromise of the supply chain for key weapons systems components.”
I’ve seen these offshoring risks firsthand.
Our military is now shockingly vulnerable to major disruptions in the supply chain, including from substandard manufacturing practices, natural disasters, and price gouging by foreign nations. Poor manufacturing practices in offshore factories lead to problem-plagued products, and foreign producers—acting on the basis of their own military or economic interests—can sharply raise prices or reduce or stop sales to the United States.
The link between TPP and this kind of offshoring has been well-established. The proposed deal would not only repeat but magnify the mistakes of the North American Free Trade Agreement (NAFTA), offering extraordinary privileges to companies that move operations overseas. Just this spring, an official U.S. government study by the International Trade Commission noted that the pact would further gut the U.S. manufacturing sector. This, following the loss of 5 million manufacturing jobs since 2000, is a perilous proposition.
Foreign policy and national security have long been the arguments of last resort for backers of controversial trade deals. A quarter century ago, we were warned that, unless NAFTA and deals with eight Latin American nations were enacted, China would come to dominate trade in the hemisphere. NAFTA passed, but America’s share of goods imported by Mexico fell, while China’s share rose by a staggering 2,600 percent. Today, following the implementation of several additional major trade deals, we’re still waiting for China to comply with its WTO commitments, and we’re still waiting for progress in dealing with our astronomical trade deficit.
While the TPP’s backers present our choice as one of trade versus protectionism, this couldn’t be further from the truth. We already have free trade agreements with the six TPP countries that account for more than 80 percent of the promised trade. Because all TPP nations are currently members of the World Trade Organization, their tariffs have already been cut to minimal levels.
Of TPP's 30 chapters, only six deal with traditional trade issues. The rest deal primarily with special privileges for multinational corporations and investors—like establishing the rights of companies to sue governments for cash compensation over the impacts of health and safety regulations. These dominant features of the TPP would vastly expand the rights of multinational firms that do not necessarily represent America’s national interests.
Critics of the TPP come from both parties in Congress—and from the business, labor, environmental, consumer, human rights, and defense communities. These diverse players are not opposed to trade. Rather, most simply want a different trade model that facilitates the worthy goal of global engagement without shortchanging American workers, policymaking prerogatives, and national security capacities.
While the Obama Administration has been wise to shift our defense and diplomatic attention towards the Asia-Pacific region, it’s now time for a “pivot” in our approach to trade.
http://thehill.com/blogs/congress-blog/foreign-policy/291725-the-national-security-case-against-tpp
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