Preview Newsletter
ACC AM 8/29/16
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(ACC Mentioned) Global CPRI Shows Flat Growth In 2016, ACC Says
Aug 26, 2016 | Chemical Engineering
By Scott Jenkins
The American Chemistry Council’s (ACC; Washington, D.C.; www.americanchemistry.com) Global Chemical Production Regional Index (Global CPRI) shows that growth in the industry has been nearly flat most of the year thus far. -
(ACC Blog) ACC Files Comments To Inform EPA’s Development Of Rules Under The LCSA
Aug 26, 2016 | American Chemistry Matters
By Mike Walls
The U.S. Environmental Protection Agency (EPA) is already moving quickly to implement the Lautenberg Chemical Safety Act (LCSA), and here at ACC we have been actively engaged with the Agency in the implementation process. -
A Strong New Chemical Safety Law
Aug 26, 2016 | Environmental Defense Fund
Our nation’s main law governing chemical safety — theToxic Substances Control Act (TSCA) — was seriously flawed and outdated. Until June, 2016, the core provisions of the statute had never been amended since it was adopted, in 1976. -
EPA Seeks Nominees For New TSCA Advisory Panel
Aug 26, 2016 | Inside EPA
EPA is seeking nominations to serve on a new advisory panel known as the Science Advisory Committee on Chemicals (SACC) tasked with providing the agency input on the scientific basis for risk assessments, scientific methods, and other work, as required by the recently revised Toxic Substances Control Act (TSCA). -
Boxer Pushes EPA to Review Asbestos Under New Chemicals Law
Aug 29, 2016 | BNA Daily Environment Report
By Sam Pearson
The Environmental Protection Agency must lay the groundwork to take action against asbestos by flagging the substance for review later this year, Sen. Barbara Boxer (D-Calif.) said in an Aug. 26 letter to the agency. -
Dem Senator Pushes EPA On Asbestos Regulations
Aug 26, 2016 | The Hill - E2 Wire
By Devin Henry
A California Democrat is pushing the Environmental Protection Agency (EPA) to make asbestos one of the first chemicals it regulates under a tough new chemical safety law. -
How Long is Too Long to Sue Over Prenatal Toxics Exposure?
Aug 29, 2016 | BNA Daily Environment Report
By Joyce E. Cutler
How long is too long to sue an employer over prenatal toxics exposure? (Lopez v. Sony Electronics Inc., Cal., No. S235357, 8/24/16). -
Five Things To Know About The Dakota Access Pipeline Fight
Aug 27, 2016 | The Hill - E2 Wire.
By Devin Henry
North Dakota’s Standing Rock Sioux tribe took to Washington this week in its growing legal battle against a major pipeline project. -
Colorado Governor Predicting Loss For Local Control Initiatives to Limit Oil, NatGas Drilling
Aug 26, 2016 | Natural Gas Intelligence
By Carolyn Davis
Colorado Gov. John Hickenlooper (D) on Thursday criticized efforts by environmental groups to derail oil and natural gas development in the state and predicted two potential amendments to the constitution won't make the November ballot. -
Fracking Really Isn't So Bad
Aug 28, 2016 | Forbes
By James Conca
When Governor Andrew Cuomo announced last year that hydraulic fracturing would be banned in the State of New York, he cited the lack of scientific data on public health effects. He also said more study needed to be done to determine where emissions were coming in the fracking and extraction cycle. -
Which State Is a Big Renewable Energy Pioneer? Texas
Aug 28, 2016 | The Wall Street Journal
By Bill Spindle and Rebecca Smith
On a blustery February night, the Texas electricity market hit a milestone. Nearly half the power flowing onto the grid came from wind turbines, a level unimaginable a decade ago in a place better known for its long romance with fossil fuels. -
Settlement Nears in BP Chemical Exposure Case
Aug 29, 2016 | BNA Daily Environment Report
By Steven M. Sellers
BP Products North America Inc. is close to settling claims that workers were exposed to toxic chemicals at one of its Texas refineries, according to recent filings in the U.S. District Court for Southern District of Texas (Boyd v. BP Prods. N.A., Inc., S.D. Tex., No. 13-cv-00175, notice of settlement conference 8/24/16). -
Scrap Air Permitting Proposal Until Suit Settled, EPA Told
Aug 29, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A proposal to remove from air permitting rules language shielding industrial facilities from enforcement action during emergency situations should be scrapped until related litigation is resolved, states and industry groups said. -
EPA Delays With Self-Audit Oversight Prompt Push To Boost States' Role
Aug 26, 2016 | Inside EPA
By David LaRoss
Some industry attorneys are calling for EPA to allow states to take a leading role in reviewing facilities' self-reported violations of environmental laws rather than employing the agency's own self-audit policy, saying the federal program is outdated and has limited resources that have led to delays responding to submissions. -
State Should Look Beyond Cap And Trade To Develop More Effective Climate Policies
Aug 26, 2016 | The Sacramento Bee
By Oscar Reyes
California’s cap-and-trade scheme is in trouble. The latest carbon auction announced Aug. 23 failed to sell two-thirds of the available pollution permits, a third successive flop. That could leave a significant funding gap for other climate measures, such as weatherizing old homes, which are supposed to be paid for by revenue from these state-run auctions. -
G-20 Meeting Could Include Talk of Climate Policies
Aug 29, 2016 | BNA Daily Environment Report
By Alan Kovski
The cooperative relationship between the Obama administration and the Chinese government on climate change bodes well for possible attention to the subject when world leaders gather at the next Group of 20 summit, observers suggested Aug. 26.
Congressional Hearings - There are no relevant hearings to report at this time
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News - There are no relevant clips to report at this time
Environment News
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(ACC Mentioned) Global CPRI Shows Flat Growth In 2016, ACC Says
Aug 26, 2016 | Chemical Engineering
By Scott Jenkins
The American Chemistry Council’s (ACC; Washington, D.C.; www.americanchemistry.com) Global Chemical Production Regional Index (Global CPRI) shows that growth in the industry has been nearly flat most of the year thus far. The headline index for July rose just 0.1 percent on a three-month moving average (3MMA) basis. This follows six months of relatively stable activity after a fairly strong 4th quarter. During July, chemical production increased in Africa & the Middle East and in Asia-Pacific region. Activity was flat in Central & Eastern Europe, while production fell in North America, Latin America, and Western Europe. The Global CPRI was up 2.3 percent year-over-year (Y/Y) on a 3MMA basis and stood at 108.5 percent of its average 2012 levels in July.
During July, capacity utilization in the global business of chemistry declined 0.2 percentage points to 78.9 percent. This is off from 80.5 percent last July and is below the long-term (1987-2015) average of 89.2 percent.
Results were largely positive on a product basis during July. Weakness in the production of pharmaceuticals was offset by gains in agricultural chemicals, consumer products, inorganic chemicals, organic chemicals, plastic resins, synthetic rubber, manufactured fibers, coatings, and other specialties.
ACC’s Global CPRI measures the production volume of the business of chemistry for 33 key nations, sub-regions, and regions, all aggregated to the world total. The index is comparable to the Federal Reserve Board (FRB) production indices and features a similar base year where 2012=100. This index is developed from government industrial production indices for chemicals from over 65 nations accounting for about 98 percent of the total global business of chemistry. This data are the only timely source of market trends for the global chemical industry and are comparable to the U.S. CPRI data, a timely source of U.S. regional chemical production.
http://www.chemengonline.com/global-cpri-shows-flat-growth-in-2016-acc-says/?printmode=1
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(ACC Blog) ACC Files Comments To Inform EPA’s Development Of Rules Under The LCSA
Aug 26, 2016 | American Chemistry Matters
By Mike Walls
The U.S. Environmental Protection Agency (EPA) is already moving quickly to implement the Lautenberg Chemical Safety Act (LCSA), and here at ACC we have been actively engaged with the Agency in the implementation process.
In early August, EPA held a series of public meetings on the LCSA to discuss the first rules the Agency is to develop under the new law. The first stakeholder meetings were important in that they allowed input prior to the drafting of regulations. Stakeholders like ACC were able to engage with the Agency to discuss the importance of properly implementing the new law in an objective and transparent way and using the best available and highest quality science to draw conclusions about a chemical’s safety.
We believe these rules are critical to ensure that the law is meeting its goal of reassuring Americans that chemicals in the marketplace have undergone a safety review.
During the stakeholder meetings ACC outlined:how EPA should systematically prioritize chemicals for purposes of risk evaluations;the necessary elements of high-quality risk evaluations that reflect the LCSA requirements that decisions be based on the best available science and weight-of-the-evidence; andissues the Agency should address in establishing a fee system that supports EPA administration of the new law.
As a follow-up to these meetings, ACC submitted written comments that clarify and extend our remarks. In particular, ACC’s written comments clarify our views on how the Agency should develop the rules, especially for addressing the scientific provisions of LCSA in adequate detail in the regulations.
ACC’s written comments are summarized below.Risk-Based Prioritization of ChemicalsThe rule must address both procedural requirements of the prioritization process and the application of the best-science provisions.EPA must include the basic elements outlined by the statute in the rule for the development of a “risk based screening process” to designate substances as high or low priority.EPA’s implementation of the prioritization sections of the LCSA should incorporate the law’s provisions on testing, reporting of information and confidential business information.If EPA’s prioritization process is based on the Agency’s Work Plan Chemical methodology to identify priorities, it should incorporate several near- and long-term improvements.Risk EvaluationsThe LCSA outlines substantive elements that are core to the risk evaluation process, including:a reasonable, efficient process to determine whether a substance presents and unreasonable risk to human health or the environment;a process to identify potentially exposed subpopulations relevant to the evaluation under the conditions of use; andincorporating the specific LCSA science requirements, including best available science, weight-of-the-evidence and transparency requirements.EPA should engage stakeholders early and often in the risk evaluation process.Fees for EPA to Administer the LCSAEPA must be clear about its current and anticipated costs and realistic in its expectation for fee revenue. EPA must assure that fees are not set at a level that would adversely impact innovation and competition.EPA should not assess fees for the submission of data under testing requirements.Fees for submissions and Agency actions should reflect the level of effort required by the Agency.EPA should establish a single fee per substance for risk evaluations and allow flexibility for industry groups to determine how those fees should be allocated.
The development of these rules in collaboration with stakeholders is vital to the success of the new law. Proper implementation will incorporate the key science provisions of the LCSA, promote transparency and stakeholder input and ensure that Americans can trust that the products of chemistry are safe for their intended uses.
Stakeholders can expect EPA to propose rules on these issues by mid-December 2016 and make them final by June 2017.
https://blog.americanchemistry.com/2016/08/acc-files-comments-to-inform-epas-development-of-rules-under-the-lcsa/
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A Strong New Chemical Safety Law
Aug 26, 2016 | Environmental Defense Fund
Our nation’s main law governing chemical safety — theToxic Substances Control Act (TSCA) — was seriously flawed and outdated. Until June, 2016, the core provisions of the statute had never been amended since it was adopted, in 1976.
Our broken chemical safety system allowed tens of thousands of chemicals to remain on the market without any review of their safety and chemical companies to put hundreds of new chemicals on the market every year without any demonstration that they were safe. The government had to have evidence that a chemical posed a risk before it could require testing – creating a Catch 22. Even for chemicals known to be dangerous, the government was virtually powerless to do anything. Finally, companies were given wide latitude to claim chemical information they submitted to the government to be trade secrets and hide it from the public and even from state and local governments and medical professionals.The Solution: The Lautenberg Act
In 2016, Congress finally took action to better protect our health by adopting far-reaching reforms of TSCA. After years of debate and inaction, on June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act – a new law that fixes the biggest problems with the old law.
The Lautenberg Act gives EPA the tools necessary to ensure the safety of chemicals and significantly strengthen health protections for American families. Notably, the law:Mandates safety reviews for chemicals in active commerce.Requires a safety finding for new chemicals before they can enter the market.Replaces TSCA’s burdensome cost-benefit safety standard—which prevented EPA from banning asbestos—with a pure, health-based safety standard.Explicitly requires protection of vulnerable populations like children and pregnant women.Gives EPA enhanced authority to require testing of both new and existing chemicals.Sets aggressive, judicially enforceable deadlines for EPA decisions.Makes more information about chemicals available, by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs.
See here for a detailed analysis of the law. The long road to reform TSCA
For more than a decade, EDF’s experts pressed for reform, issuing a series of groundbreaking reports and papers and providing our perspective on current issues and development on chemicals policy reform on EDF’s chemicals blog.
Major advances in chemicals policies in other parts of the world over the past few decades left the U.S. behind in the increasingly global chemicals economy. But with this new law in place, we’re bringing U.S. chemicals policy into the 21stcentury.
https://www.edf.org/health/policy/chemicals-policy-reform
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EPA Seeks Nominees For New TSCA Advisory Panel
Aug 26, 2016 | Inside EPA
EPA is seeking nominations to serve on a new advisory panel known as the Science Advisory Committee on Chemicals (SACC) tasked with providing the agency input on the scientific basis for risk assessments, scientific methods, and other work, as required by the recently revised Toxic Substances Control Act (TSCA).
Section 17 of the new law revising TSCA -- which President Obama signed on June 22 -- requires that EPA create the SACC, which is also crafted under the Section 9 authorities of the Federal Advisory Committee Act. The new law directs that the agency have the SACC operating no later than one year after its enactment date.
In an Aug. 26 Federal Register notice calling for nominations, EPA says the SACC will consist of 14 members and meet three or four times per year to “provide advice and recommendations on the scientific basis for risk assessments, methodologies, and pollution prevention measures or approaches.”
The TSCA law says the panel will “provide independent advice and expert consultation, at the request of the Administrator, with respect to the scientific and technical aspects of issues relating to the implementation of this title.”
The reform law also directs that the committee shall include “representatives of such science, government, labor, public health, public interest, animal protection, industry, and other groups as the Administrator determines to be advisable, including representatives that have specific scientific expertise in the relationship of chemical exposures to women, children, and other potentially exposed or susceptible subpopulations.”
EPA is looking for five new SACC members, and will take nominations and comments through Oct. 11, according to the Register notice.
The agency seeks experts in the fields of “[h]uman health and ecological risk assessment, biostatistics, epidemiology, pediatrics, physiologically-based pharmacokinetics (PBPK), toxicology and pathology (including neurotoxicology, developmental/reproductive toxicology, and carcinogenesis), and chemical exposure to susceptible life stages and subpopulations (including women, children, and others).”
The new committee's creation follows the establishment last summer of the Chemical Safety Advisory Committee(CSAC), which was created to "provide expert scientific advice, information and recommendations to the Office of Pollution Prevention and Toxics (OPPT) on the scientific basis for risk assessments, methodologies, and pollution prevention measures or approaches," according to its charter.
CSAC recently completed its first peer review of a draft OPPT risk assessment of the solvent 1-bromopropane. The assessment was part of EPA's TSCA work plan risk assessment program, which EPA started in 2012 with the goal of more strictly enforcing the original TSCA authorities while awaiting Congressional reform of the unwieldy law. The program is now seen as a bridge to the new programs under the revised TSCA.
EPA's Register notice explains that, “[p]otentially, 9 of the 14 members of the SACC will be selected from interested and available members of the existing . . . CSAC.” The notice adds that all nine members of the CSAC are “interested and available for the SACC.”
http://insideepa.com/news-briefs/epa-seeks-nominees-new-tsca-advisory-panel
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Boxer Pushes EPA to Review Asbestos Under New Chemicals Law
Aug 29, 2016 | BNA Daily Environment Report
By Sam Pearson
The Environmental Protection Agency must lay the groundwork to take action against asbestos by flagging the substance for review later this year, Sen. Barbara Boxer (D-Calif.) said in an Aug. 26 letter to the agency.
Under the new Frank R. Lautenberg Chemical Safety for the 21st Century Act, the EPA is supposed to give priority to known carcinogens like asbestos. The agency is required to select the first 10 chemicals for evaluation by Dec. 22.
Adding asbestos to the list would be just the first step in a regulatory process that could still take several years. If an asbestos ban was justified under the law's provisions, it could eventually force companies in fields such as the chlor-alkali industry to remove asbestos-containing products from their operations.
In the letter to EPA Administrator Gina McCarthy, Boxer said including asbestos among the initial 10 substances would send a signal that EPA was serious about making the most of the new law, which updates the Toxic Substances Control Act.
“The chemicals selected will drive EPA's agenda for the next several years,” Boxer wrote. “To build confidence in the agency's ability to deliver meaningful results for our children and families, EPA must consider all forms of asbestos in this initial list of chemicals it acts on.”
In previous comments, industry groups have pushed for the agency to select the 10 chemicals from its existing Toxic Substances Control Act Chemical Work Plan list. Asbestos and asbestos-like fibers were added to the work plan in 2012, but unlike some other chemicals on the list, EPA has not initiated a risk assessment or other regulatory actions.
In a statement to Bloomberg BNA Aug. 26, the EPA said it had received the letter.
“The agency welcomes input from all stakeholders on this and other issues related to implementation of this important new law,” the statement said.
Poster Substance for Reform
Though asbestos has not been mined in the U.S. since 2002, more than 8.2 million pounds of the mineral were imported from 2006 to 2015, according to a March 2015 EWG Action Fund report that analyzed import data.
Asbestos played a prominent role in EPA's early efforts to restrict hazardous chemicals. In 1991, the EPA's proposed asbestos ban was struck down when a federal appeals court ruled the agency failed to consider alternatives to a ban (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
The ruling, which exposed the limitations of the Toxic Substances Control Act, was among the reasons cited for overhauling the law. Whether legislation would be sufficient to ban asbestos became a key test for many advocacy groups.
“The system was so complex, it was so burdensome that our country hasn't even been able to uphold a ban on asbestos--a known carcinogen that kills as many as 10,000 Americans every year,” President Barack Obama said at a signing ceremony for the new law June 22. “I think a lot of Americans would be shocked by all that.”
Obama's words were huge for public health advocates, Linda Reinstein, president of the Asbestos Disease Awareness Organization, told Bloomberg BNA Aug. 26.
Reinstein said Boxer's letter showed the EPA “that although TSCA reform was signed into law, it doesn't mean that any of the sponsors or cosponsors are going to walk away and ignore implementation.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96369493&vname=dennotallissues&fn=96369493&jd=96369493
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Dem Senator Pushes EPA On Asbestos Regulations
Aug 26, 2016 | The Hill - E2 Wire
By Devin Henry
A California Democrat is pushing the Environmental Protection Agency (EPA) to make asbestos one of the first chemicals it regulates under a tough new chemical safety law.
In a letter to the EPA on Friday, Sen. Barbara Boxer (D-Calif.) said the agency should make asbestos one of the 10 chemicals it will inspect and regulate first under the Toxic Substances Control Act, which became law the summer. That list of chemicals is due out by the end of the year.
The call comes after the EPA tried phasing out asbestos under a previous version of the law in 1989. That rule was shot down by federal courts at the time.
“Now that the impediments in the original TSCA law are gone, completing the job started by EPA in 1989 would send a strong signal that the new law can be effective in addressing the most dangerous chemicals in commerce,” Boxer wrote in her letter to EPA Administrator Gina McCarthy.
Exposure to asbestos, a chemical used in building materials, has been tied to cancer and other health problems. Production of the chemical has ended in the United States and its use has declined, but the United States still goes through about 400 tons of the material annually, according to the U.S. Geological Service.
The EPA banned the use of spray-on asbestos for fireproofing and other uses in the 1970s, according to the Mesothelioma Center. But its 1989 rule banning the chemical was overturned by the Fifth Circuit Court of appeals in 1991.
Boxer, though, said the new TSCA law should lead to an asbestos rule now.
“The U.S. now has the ability to be a global leader and join the many other nations that have acted to address the harms posed by asbestos,” she wrote. “EPA should seize this opportunity by including asbestos in the first 10 chemicals that it acts on under the new law.”
http://thehill.com/policy/energy-environment/293483-dem-senator-pushes-epa-on-asbestos-regulations
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How Long is Too Long to Sue Over Prenatal Toxics Exposure?
Aug 29, 2016 | BNA Daily Environment Report
By Joyce E. Cutler
How long is too long to sue an employer over prenatal toxics exposure? (Lopez v. Sony Electronics Inc., Cal., No. S235357, 8/24/16).
The California Supreme Court Aug. 24 agreed to consider that question, which would resolve a split among California appeals courts.
The court will review whether a mother waited too long to sue Sony Electronics Inc. for birth and reproductive injuries to her daughter, a case that set up a split in the state appeals courts over whether a six- or two-year statute of limitations applies.
‘Two Bright Lines.'
For companies operating in California with the conflicting rules, “there are two bright lines, and that's the problem,” Jake Miller, an Arnold & Porter associate in Los Angeles, told Bloomberg BNA.
“As a company doing business, you want to be able to know how far back your potential liability goes for claims, and in California you don't know,” he said.
Miller said he would suggest to a client currently facing that issue to “probably seek a stay” while the California Supreme Court sorts out which statute is controlling.
The California Court of Appeal, Second District, ruled under California Code of Civil Procedure section 340.4 a six-year statute of limitations for injuries sustained “before or in the course of” birth bars the claims filed on behalf of the 12-year-old daughter of Dominique Lopez (Lopez v. Sony Elec., Inc., Cal. Ct. App., No. B256792, 5/13/16).
Split Over Statute of Limitations
The Second District ruling created a split with the California Court of Appeals, Sixth District, holding for a two-year limitations period under Cal. Cod. Civ. Proc. Section 340.8 for illness or injury based on exposure to a hazardous material or toxic substance (Nguyen v. W. Digital Corp., Cal. Ct. App., No. H038934, 9/25/14).
The Sixth District decision was unanimous while the Second District's decision was not, said Michael B. Gurien, a partner with Waters Kraus and Paul LLP in El Segundo, Calif., representing plaintiffs in both cases.
“The Supreme Court's grant of review means that it will resolve this split of authority,” Gurien said in an Aug. 25 e-mail to Bloomberg BNA.
Counsel for Sony couldn't immediately be reached for comment.
Michael B. Gurien and David Bricker, Waters Kraus and Paul LLP, El Segundo, Calif., represent plaintiffs. William A. Bossen and Alejandro Hugo of Aharonian, Musick Peeler and Garrett LLP, Los Angeles, represent Sony.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96369475&vname=dennotallissues&fn=96369475&jd=96369475
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Five Things To Know About The Dakota Access Pipeline Fight
Aug 27, 2016 | The Hill - E2 Wire.
By Devin Henry
North Dakota’s Standing Rock Sioux tribe took to Washington this week in its growing legal battle against a major pipeline project.
The tribe says the Dakota Access Pipeline threatens its sacred sites and imperils drinking water near its North Dakota reservation.
Green and anti-fossil fuel groups have taken up the tribe’s cause, setting in motion one of the highest-profile pipeline fights since President Obama rejected the Keystone XL pipeline last year.
Here are five things to know about the fight over Dakota Access.
What is the Dakota Access Pipeline?
Dakota Access is a 1,170-mile pipeline that would, at peak capacity, deliver up to 570,000 barrels of Bakken crude oil daily from North Dakota to Illinois.
The pipeline is only slightly shorter than the proposed 1,179-mile Keystone XL project, but it would transport less oil than the planned 800,000-barrel Keystone.
Though they’re comparable in length and capacity, the legal situations around the two are very different. Since Keystone crossed an international border, it required a stricter environmental review and, ultimately, presidential approval.
Dakota Access is domestic, and developers have sought its approval under a different process that tribal leaders say didn’t give them the chance to provide their input.
The $3.7 billion project, from developers Energy Transfer Partners, has secured nearly all of the permits — federal and state — it needs to move forward. Workers have begun clearing and grading work along much of the pipeline’s route.
Why are the Sioux objecting?
The tribe’s basic argument, which it made to a federal judge Wednesday, is that regulators at the Army Corps of Engineers didn’t give it enough of a chance to assess the pipeline’s impact on cultural sites and the possible effects of a spill along the line.
The tribe is seeking an injunction blocking additional construction until it can make those assessments.
“The [law] doesn’t give the tribes veto power over anything, it gives them the right to have a dialog around their cultural heritage,” Jan Hasselman, an Earthjustice lawyer representing the tribe, said. “An injunction for us doesn’t mean no pipeline.”
Beyond legal issues, though, the tribe has raised cultural objections to the pipeline, calling it the latest slight from companies and governments seeking to profit off of natural resources on or near tribal lands.
In that sense, Hasselman and tribal allies said, the Standing Rock Sioux are ready to wage a more thorough protest against the project and turn it into a social justice issue.
“Whether it’s gold from the Black Hills or hydropower from the Missouri [River] or oil pipelines that threaten our ancestral inheritance, the tribes have always paid the price for America’s prosperity,” Standing Rock Sioux Chairman David Archambault II wrote in a New York Times op-ed on Thursday.
“We are also a resilient people who have survived unspeakable hardships in the past, so we know what is at stake now.”
How have pipeline supporters responded?
Federal officials and Dakota Access developers say they gave Standing Rock the chance to survey the pipeline’s route, but the tribe declined.
“The Corps followed procedure in this case when it actively worked to engage with the plaintiffs, the Standing Rock Sioux,” federal lawyer Matthew Marinelli told the judge Wednesday.
Hasselmen told the court the developers’ offer was too “narrow” for the tribe to accept.
Dakota Access, too, has fought back against accusations it took a cavalier approach to routing the pipeline. Its lawyer said Wednesday that it surveyed 100 percent of the pipeline’s route, and that it shared the conclusions with the tribe. It’s also allowing tribal officials on construction sites to monitor the work.
“This is not a cowboy process,” lawyer William Leone said.
North Dakota Petroleum Council spokeswoman Tessa Sandstrom said the project is an important economic driver for the state, and she said it has broad support among other landowners there.
“People in North Dakota have been asking for infrastructure, and we’ve finally got a project that can help with a lot of that,” she said.
Who else is involved in the fight?
Protests against the pipeline have ballooned since the Army Corps released a major round of permits in July. Organizers see an anti-pipeline effort as wide-reaching as any since Keystone.
Hundreds of people — tribal residents and fossil fuel protesters — have demonstrated against the pipeline at construction sites in North Dakota, with the state’s governor declaring a state of emergency there and a federal judge issuing a restraining order against new protests. About 20 people have been arrested as part of the demonstrations.
Nationally, greens have begun mobilizing against the pipeline as well, moving beyond the basic legal questions posed by the tribe. Thirty-one groups sent a letter to the White House on Thursday, asking President Obama to block the final permits needed for Dakota Access and revoke those already issued.
“The president and his administration can weigh in and take action, and they have the legal authority to call for a full environmental review of this pipeline, or to halt construction by not granting permits,” said Catherine Collentine, a senior campaign representative at the Sierra Club.
A stringent environmental review helped tie up Keystone, anti-pipeline activists’ biggest victory during Obama’s presidency. But they acknowledge they have a tougher task ahead in taking on Dakota Access: Most permits have been issued, and early work on the project is almost done, even in North Dakota.
But a political fight could be brewing, too: Sen. Bernie Sanders (I-Vt.) spoke out against the project on Thursday because of the pipeline’s impact on climate change.
And the anti-Dakota Access push has attracted star power as well. Actresses Susan Sarandon and Shailene Woodley — both diehard Sanders backers during the Democratic presidential primary — headlined a rally against the pipeline in Washington this week.
Citing the lawsuit, the White House directed questions on the pipeline to the Department of Justice, which declined to comment.
What comes next?
Developers hope to get Dakota Access up and running by Jan 1. It has halted construction work amid protests and while it waits for final permitting to come through.
Federal District Judge James Boasberg has said he’ll rule on an injunction against the pipeline’s construction by Sept. 9, and, anticipating appeals, he set another hearing on the matter for the following week.
Tribal allies said the injunction request is just the beginning of the legal battle. They could pose environmental questions next, and Hasselman said other tribes along the pipeline route could look to challenge it as well.
And as opposition firms up, a public campaign against Dakota Access is looming, too.
“The thing that’s happening out there is so much bigger than the lawsuit,” Hasselman said. “I think it’s potentially big in ways we don’t understand yet.”
http://thehill.com/policy/energy-environment/293535-five-things-to-know-about-the-dakota-access-pipeline-fight
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Colorado Governor Predicting Loss For Local Control Initiatives to Limit Oil, NatGas Drilling
Aug 26, 2016 | Natural Gas Intelligence
By Carolyn Davis
Colorado Gov. John Hickenlooper (D) on Thursday criticized efforts by environmental groups to derail oil and natural gas development in the state and predicted two potential amendments to the constitution won't make the November ballot.
Speaking on the final day of the annual Colorado Oil & Gas Association's Rocky Mountain Energy Summit in Denver, the governor said his "full assumption is that neither of those two initiatives are going to have the signatures" for the fall election.
The deadline to verify citizen-backed petitions for initiatives No. 75 and 78 is looming, and the Colorado Secretary of State's Office continued Friday to verify whether they meet the requirements to be on the Nov. 8 ballot (see Shale Daily, Aug. 23; June 7). No. 75 would allow local governments to regulate oil and gas development, as long as the rules were at least as stringent as those overseen by the Colorado Oil & Gas Conservation Commission. No. 78 would change setback rules and require any new oil and gas development facility to be at least 2,500 feet from the nearest occupied structure or other specified or locally designated area.
"I don't think either one is going to be on the ballot," the governor said. "I think that's a reflection of all the effort put in by both sides to sit and listen to each other and say, 'All right, how can we respect private property? How can we acknowledge that we're going to move toward a cleaner environment?'"
A geologist by trade who started his career working in the oil and gas industry, Hickenlooper has walked a fine line in support of energy development in the state. He was able to broker an agreement two years ago that squashed similar initiatives to allow more local control over oil and gas drilling (see Shale Daily, Aug. 5, 2014). The statewide oil and gas task force he helmed in 2014 and 2015, which brought together disparate interests, cobbled agreements that gave local governments more opportunities to work on energy development, among other things (see Shale Daily, Jan. 26).
Environmental groups criticized the task force recommendations, which led to the ballot initiatives. However, Hickenlooper said the concerns were overblown. The green group's efforts to impose a 2,500-foot setback for new oil and gas facilities, which includes homes, schools, streams, lakes and areas of special concern, would end any new energy development in the state, he warned.
"Oftentimes, the emotion of the moment sweeps people away from worrying about some things like private property," he told the audience. Private property and mineral rights owners would be barred from leasing or developing their land -- and the state could be on the hook for compensating them if that were to happen.
"This isn't China," said the governor. "This isn't Russia. We don't take people's private property without compensating them."
Earlier on Thursday Colorado Sen. Cory Gardner (R) also addressed the summit. The debate over banning oil and gas unconventional drilling, particularly fracturing (fracking), represents an "existential threat" to Colorado, he told the audience.
"This debate that's taking place in Colorado right now, about whether or not we should ban fracking, is an existential threat that we have to kill and we have to stop," Gardner said. "But unfortunately, it's not just a debate that's taking place in Colorado."
The senator poked at positions about energy development, or lack thereof, that he said have been taken by Democratic presidential nominee Hillary Clinton but not GOP nominee Donald Trump, whom he supports. He cited the new U.S. Chamber of Commerce report that warned the country could lose jobs and billions in royalties if a ban were to be imposed limiting federal oil and gas production (see Shale Daily, Aug. 25). Gardner claimed that Clinton supports the "Keep it in the Ground" movement, but she has never publicly endorsed the movement, nor has the Obama administration.
"Think about what that means to jobs in this state. I grew up in a little town with 3,000 people. Thanks to the natural gas industry, we have a third stop light in that little town. We had two. Now we have three."
When natural gas development began to expand, Gardner said his former high school classmates "started moving back...People who graduated from high school and college were returning to that small town, were staying in that small town."
Candidates who oppose fossil fuel production on federal land are "not fit" to hold office, he told the audience. "We have leaders who are saying irresponsible things, like we will have no more production on public lands...It's irresponsible, and I think anybody who refuses to reject statements like that are not fit for statewide office in Colorado and are not fit for federal office in Washington, DC."
Hickenlooper also commented on reports that he may draft an executive order to require a 35% reduction by 2030 in carbon emissions from the power sector from 2012 levels.
"An executive order is an executive order," which is not binding, the governor said. "You still have to go through rulemaking...through legislation. There’s a process around that."
With energy sector innovations, "we can...have cleaner air, clean water and not penalize natural gas. We can find ways to have cleaner energy and be less expensive. The appropriate role of government is not beat industry into submission...but to lay out some goals."
Some environmental groups are welcoming the potential draft order, Mitigating and Adapting to Climate Change. The groups claim that that the United Nations mandate issued in Paris last December required more aggressive global reductions in carbon emissions to combat global warming.
"We're not trying to box anyone in," Hickenlooper said. "We think we can be more ambitious. But cost matters."
http://www.naturalgasintel.com/articles/107547-colorado-governor-predicting-loss-for-local-control-initiatives-to-limit-oil-natgas-drilling
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Aug 28, 2016 | Forbes
By James Conca
When Governor Andrew Cuomo announced last year that hydraulic fracturing would be banned in the State of New York, he cited the lack of scientific data on public health effects. He also said more study needed to be done to determine where emissions were coming in the fracking and extraction cycle.
That study has now been done. Chemists at the University of Texas at Arlington published a study that indicates contamination from fracking wells are highly variable but result more from operational inefficiencies than from the extraction process itself.
In other words, it’s sloppy drilling methods that are the worst part of fracking.
The study, “Point source attribution of ambient contamination events near unconventional oil and gas development”, was published on Friday in the Science of the Total Environment. The researchers found highly variable levels of benzene, toluene, ethyl benzene, and xylene compounds (BTEX) in and around fracking sites in the Eagle Ford shale region in South Texas. BTEX compounds in high concentrations can have harmful health effects in humans.
What was important was that the emissions were not from the fracking itself, but from a variety of onsite activities that were carried out in a poor or sloppy fashion.
Most studies on fracking have focused on rogue methane emissions. While methane is a potent greenhouse gas, rogue emissions do not have an immediate effect on human health because their concentrations are hundreds to thousands of times below what is required for acute health effects or asphyxiation.
But toxic vapors are another matter.
The authors presented an analysis of BTEX in the Eagle Ford shale region of southern Texas where fracking has increased enormously in the last decade. Using a novel mobile mass spectrometer mounted in the passenger seat of an electric hybrid car, real-time air quality measurements gave BTEX concentrations up to 5,000 parts per billion (ppb) originating from various onsite activities.
James Conca ,
CONTRIBUTOR
I write about nuclear, energy and the environment
Opinions expressed by Forbes Contributors are their own.
Chemists at the University of Texas at Arlington have published a new study that suggests the toxic organic vapor contamination in and around oil and gas fracking wells result more from sloppy drilling and operations, and are not inherent to the extraction process itself. Source: Hildenbrand et al. (2016)
When Governor Andrew Cuomo announced last year that hydraulic fracturing would be banned in the State of New York, he cited the lack of scientific data on public health effects. He also said more study needed to be done to determine where emissions were coming in the fracking and extraction cycle.
That study has now been done. Chemists at the University of Texas at Arlington published a study that indicates contamination from fracking wells are highly variable but result more from operational inefficiencies than from the extraction process itself.
In other words, it’s sloppy drilling methods that are the worst part of fracking.
The study, “Point source attribution of ambient contamination events near unconventional oil and gas development”, was published on Friday in the Science of the Total Environment. The researchers found highly variable levels of benzene, toluene, ethyl benzene, and xylene compounds (BTEX) in and around fracking sites in the Eagle Ford shale region in South Texas. BTEX compounds in high concentrations can have harmful health effects in humans.
What was important was that the emissions were not from the fracking itself, but from a variety of onsite activities that were carried out in a poor or sloppy fashion.
Most studies on fracking have focused on rogue methane emissions. While methane is a potent greenhouse gas, rogue emissions do not have an immediate effect on human health because their concentrations are hundreds to thousands of times below what is required for acute health effects or asphyxiation.
But toxic vapors are another matter.
The authors presented an analysis of BTEX in the Eagle Ford shale region of southern Texas where fracking has increased enormously in the last decade. Using a novel mobile mass spectrometer mounted in the passenger seat of an electric hybrid car, real-time air quality measurements gave BTEX concentrations up to 5,000 parts per billion (ppb) originating from various onsite activities.Recommended by ForbesNuclear Plants Running For 80 Years Trump Renewables And GasU.S. Should Save Nuclear Industry From Fracking Peril: IEACenturyLinkVoice: The Benefits Of Purpose In Corporate DNAIEA Scolds U.S. For Waffling On Wind Tax CreditNukes Best Option Against Russian GasMOST POPULARPhotos: The Most Expensive Home Listing in Every State 2016TRENDING ON LINKEDIN4 Things You Shouldn't Assume About Work-At-Home MicropreneursMOST POPULARPhotos: The Richest Person In Every StateMOST POPULARHow To Write Better Emails
These include gas flaring units, condensate tanks, compressor units, and hydrogen sulfide scavengers. Mechanical inefficiencies in these systems, not the fracking process itself, cause the majority of emissions from these sites. While these measurements on their own do not fully portray emissions at all sites, they strongly suggest that contamination from fracking wells can be monitored, controlled, and reduced through better procedures and practices.
We’ve noticed this before with respect to fracked wells. Fugitive methane emissions come more from a poor cement job during sealing of the wells, than from fracking itself. EPA considers emissions from natural gas systems to be fairly low, even compared to agriculture and organic digesters (Duke University; Forbes Opinion).
Plus, no one believes fracking for gas to be anywhere near as environmentally destructive as getting coal or oil out of the ground by any means.
America’s carbon emissions are lower than at any time since 1989 and there are two big reasons for this – the Great Recession and the shale gas fracking craze.
Last year, EPA cut its estimates of methane emissions from natural gas production by 20%, bolstering industry claims that the fuel has a lower carbon footprint than coal and prompting new calls for the agency to soften its 2012 air rules for the sector (EPA).
Over the past ten years, electricity from coal has decreased by 25% and electricity from natural gas has increased 35%. Gas is being installed as the primary back-up to renewables. Gas is replacing nuclear in some unregulated markets. So expect natural gas use to double in the coming decades.
If natural gas is going to become the major energy source in America, the industry needs to clean up its act. They can get to it on their own, or we can go through the laborious route of regulations.
Since just being careful will reduce both methane and toxic vapor emissions, addressing both climate and human health, then not being sloppy should be a no-brainer.
Of course, not sure what to do about the fracking-induced earthquakes…
http://www.forbes.com/sites/jamesconca/2016/08/28/fracking-really-isnt-so-bad/#216efb5078bd
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Which State Is a Big Renewable Energy Pioneer? Texas
Aug 28, 2016 | The Wall Street Journal
By Bill Spindle and Rebecca Smith
The Lone Star state has added more wind-based capacity than any other, as part of an aggressive energy diversification that seeks to skirt ideological land mines
On a blustery February night, the Texas electricity market hit a milestone. Nearly half the power flowing onto the grid came from wind turbines, a level unimaginable a decade ago in a place better known for its long romance with fossil fuels.
The Lone Star state still embraces its oil and gas, leading a revolution in innovative “fracking” technology. Yet an equally startling energy bonanza here has gone almost unnoticed—the rise of renewables.
Texas has added more wind-based generating capacity than any other state, with wind turbines accounting for 16% of electrical generating capacity as of April. Now Texas is anticipating a huge surge in solar power.
At a time when debate is raging between political parties over climate change, and critics charge that “green energy” is little more than a government creation, Texas has taken an approach that works within the state’s free-market-based electricity system. State officials say wind and solar are almost certain to play a significant and growing role in the state’s energy future even when federal subsidies decline in coming years.
“We’re in chapter three of a 50-chapter book,” says Joel Mickey, director of market design and development for the state’s electric-grid operator, the Electric Reliability Council of Texas, or ERCOT.
Elsewhere, most of the renewable growth is coming from blue states. California is the leader in solar power with more systems cranking out electricity, right now, than what Texas hopes to add in the nextfive to 10 years. New York finalized a plan Aug. 1 to get to half its power from zero-emission sources by 2030, with big goals for offshore wind turbines. And wind farms provided Iowans with nearly a third of their electricity last year—the largest percentage of any state. Texas remains one of the few reliably Republican states to jump on the bandwagon.
Its transformation hasn’t come without risks. In the early days, the state government charged electric-system users billions of dollars to build transmission lines needed to get power from windy West Texas to power-hungry cities. There was also a steep learning curve. Renewable power is only available when the wind is blowing or the sun is shining. It can’t be dispatched precisely when it’s needed but just when it’s available, meaning grid officials have had to become obsessive about anticipating weather. Efficient battery-storage technologies remain elusive.
Then there is the issue of subsidies. Wind projects get hefty federal payouts whenever they generate electricity. At auctions, this means they can sometimes pay the state to take their electricity and still make money, undercutting the business model of fossil-fuel generators.
Some critics worry this could lead power companies to decommission fossil-fuel plants prematurely—even though some fuel sources such as natural gas and coal are arguably cheaper these days.
“How do we keep big plants online if wind and solar have eroded the economics to the point that companies want to close them?” asks Travis Fisher, an economist with the Institute for Energy Research, a conservative think tank.
The roots of Texas’ renewables boom go back to 1999, when then-Gov. George W. Bush and a Republican-dominated legislature overhauled the Texas power market. The free market-oriented deregulation broke the grip of most monopoly utilities that controlled generation, transmission and retail sales of electricity and introduced competitive auctions for wholesale power.
The deregulation plan, which Mr. Bush signed just days after announcing he would run for the presidency, also included a government-imposed requirement to have at least 2,000 megawatts of renewable generating capacity by 2009.
Texas blew past that goal in 2005. Then Gov. Rick Perry, also a Republican and no fan of government intervention, raised the goal to 10,000 megawatts by 2025. Texas hit that target in 2011 and kept going. In April, there was more than 19,000 megawatts of renewable capacity, according to the U.S. Department of Energy, cranking out enough power for nearly 4 million Texas homes.
Texas officials didn’t invoke global warming to sell the program. Instead, they touted renewable energy as a consumer-choice issue, a jobs producer and a way to pump more money into rural counties.
Jimmy Glotfelty, Mr. Bush’s gubernatorial policy director from 1991 to 1994, says his boss “grew up in Midland where the wind blew all the time” and it gave him a hunch wind power could be a huge asset for the state. “It wasn’t part of the climate-change revolution but a belief in free markets and entrepreneurs.”
A recent poll conducted by the Texas Clean Energy Coalition, a nonpartisan group that supports the growth of gas as well renewable energy, found that despite strong distaste for federal environmental regulations aimed at reducing coal, 85% of Texans favored expanding renewables while 9% were opposed. Among Republicans and those who described themselves as ideologically conservative, nearly 80% favored those sources.
Residents of Houston currently can pick from 107 different rate plans offering 5% to 100% renewable power. In general, they are willing to pay a bit more to go green. Top-rated Reliant, a unit of NRG Energy Inc., charges 7.1 cents a kilowatt-hour for the plan that’s all renewable versus 5.9 cents for one that’s 5% green.
Federal subsidies are scheduled to shrink in coming years. An equally big driver of renewables has been the falling costs of solar and wind technology. Solar costs are down 48% since 2010, including a 6% drop last year, according to the Solar Energy Industries Association, a trade group. Those reductions are likely to continue as solar-panel manufacturers achieve economies of scale and new technologies cut costs and increase efficiency.
“[Texas] wants to have a diversity of resources because no one knows what gas prices will be in the future,” says Joel Cohn, at CohnReznick, an accounting tax advisory in New York that advises on renewable projects.
The state’s grid operator, ERCOT, expects explosive growth in solar. One analysis suggested the recent extension of the federal solar tax credit could lead to as much as 19,000 megawatts of solar capacity being built within 15 years, up from roughly 500 megawatts today. Texas is poised to vault from 10th place among states in solar capacity to second in the next five years, behind only California, according to the Solar Energy Industries Association.
Wind projects, including construction of power lines, created jobs in rural counties and gave landowners new sources of income. The state now has more than 100,000 people working in renewable energy, according to the Texas Workforce Commission, which is responsible for jobs creation.
Two sites in San Antonio operated by the city’s utility, CPS Energy, embody the change. The J.T. Deely generating plant, where smokestacks loom over piles of coal, is being retired. A few miles away, CPS’s two-year-old Alamo 2 solar farm, nestled between a pair of suburban neighborhoods, turns sunlight into electricity. As a few dozen sheep and a llama keep the grass in check, solar developer Randy Jenks notes the appeal.
“It’s clean. It’s quiet. People want it here,” he says, standing beside a few of the 17,920 solar modules that make up the 45-acre facility. When all phases of the Alamo solar venture are completed, it is expected to exceed 450 megawatts, or more solar capacity than existed in the whole state a couple of years ago.
Mr. Jenks started out in oil-and-gas exploration in the 1980s, then moved into wind power in the 1990s. Now he’s pursuing what he and his employer, OCI Solar Power, which is part of OCI Company of South Korea, see as the next big thing for Texas.
Back in 2010, CPS started thinking about solar. By 2012, it was ready to bet big. The utility signed deals with OCI Solar to build what would eventually be 450 megawatts of solar generating capacity—50% more than in all of Texas even now—on the condition OCI set up its manufacturing operations nearby and create at least 800 local jobs.
Now the city boasts its own solar industrial base, with all of the solar panels for its facilities manufactured locally. OCI and suppliers it brought to San Antonio are now lining up orders from developers in Mexico and other parts of the U.S.
Renewables are still a tiny part of CPS’s business, but its leadership expects them to grow rapidly.
“The cost has come down to the point where people can really see the value,” said Cris Eugster, the chief operating officer for San Antonio’s utility, CPS Energy.
http://www.wsj.com/articles/which-state-is-a-big-renewable-energy-pioneer-texas-1472414098?mg=id-wsj
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Settlement Nears in BP Chemical Exposure Case
Aug 29, 2016 | BNA Daily Environment Report
By Steven M. Sellers
BP Products North America Inc. is close to settling claims that workers were exposed to toxic chemicals at one of its Texas refineries, according to recent filings in the U.S. District Court for Southern District of Texas (Boyd v. BP Prods. N.A., Inc., S.D. Tex., No. 13-cv-00175, notice of settlement conference 8/24/16).
Lawyers for BP and hundreds of contractors and subcontractors who brought the joint personal injury action reported to the court Aug. 12 that “over 95 percent of active plaintiffs have agreed to resolve their claims against BP.”
The terms of any proposed deal will be considered at a settlement conference to be held Aug. 31, according to court records.
The workers allege the 2011 incident at BP's Texas City, Tex., plant resulted in the release of hydrogen sulfide, methylmercaptan, ethylmercaptan, dimethyl sulfide and dimethyl disulfide vapors.
The case currently involves more than 230 plaintiffs, according to court records.
BP has contended the Texas workers' compensation system is the exclusive remedy for the claims, but the U.S. District Court for the Southern District of Texas ruled in February that BP had to prove each contractor was covered by workers' compensation insurance, and that each contractor's injury was work-related.
A trial in the case is scheduled to begin Sept. 6, according to court records.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96369488&vname=dennotallissues&fn=96369488&jd=96369488
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Scrap Air Permitting Proposal Until Suit Settled, EPA Told
Aug 29, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A proposal to remove from air permitting rules language shielding industrial facilities from enforcement action during emergency situations should be scrapped until related litigation is resolved, states and industry groups said.
The Environmental Protection Agency proposed a rule (RIN:2060-AS96) in June to remove the emergency language, known as an affirmative defense, from federal and state regulations governing the Title V operating permit program. Those provisions are inconsistent with the EPA's interpretation of the Clean Air Act and recent federal court decisions, according to the agency.
Several states and industry organizations submitted comments urging the EPA not to move ahead with its proposal until pending litigation over a different affirmative defense rule is resolved. The U.S. Court of Appeals for the District of Columbia Circuit is currently considering litigation over a 2015 EPA rule known as a “SIP Call,” which required 36 states to revise their pollution plans to remove language that shielded power plants and other industrial facilities from civil penalties for regulatory violations caused by malfunctions. That litigation is still in the briefing phase (Walter Coke Inc. v. EPA, D.C. Cir., No. 15-1166, brief filed 7/26/16).
Several commenters, including the National Mining Association, NRG Energy, the Arkansas Department of Environmental Quality and the Texas Commission on Environmental Quality, argued it would be premature for the agency to move ahead with the Title V proposal until the Walter Coke litigation is decided.
“EPA's rationale for eliminating the Title V emergency defense rests on the same rationale that underpins the SIP Call rulemaking,” the National Mining Association said. “A decision adverse to EPA in Walter Coke would likewise undercut EPA's basis for its proposal to eliminate the Title V emergency defense. Accordingly, EPA should wait until the SIP Call litigation is concluded before determining whether to proceed with the instant rulemaking.”
More Litigation Likely
The EPA originally allowed for affirmative defenses in cases of malfunctions and emergency situations, but altered its determination of what is allowed under the Clean Air Act following a 2014 D.C. Circuit ruling on national hazardous air pollution standards for cement kilns (Nat. Res. Def. Council v. EPA, 749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. Cir. 2014)).
In Walter Coke, several industry petitioners alleged that the EPA erroneously relied on the 2014NRDC decision to justify its SIP Call rule. Several commentors signaled that similar legal arguments could be raised if the EPA moved ahead with a final rule to remove the emergency provisions from the Title V permitting regulations.
For example, Southern Co. alleged in comments that EPA's proposal is arbitrary, capricious and contrary to the law. The utility company argued that the EPA “reads far too much” into the D.C. Circuit's NRDC ruling and ignores important distinctions between the affirmative defense from civil penalties under the cement kiln standards and the affirmative defenses authorized under the Title V permitting rules.
“Based on NRDC, EPA asserts that the Tile V defense alters or limits the jurisdiction of the federal courts in enforcement actions because Section 113(b) of the [Clean Air] Act gives federal courts jurisdiction to determine liability,” Southern Co. said. “However, the NRDC decision did not address this issue and did not even mention Section 113(b).”
The utility also alleged that the EPA's proposal would violate the “basic constitutional protections” guaranteed under the Eighth Amendment because it could impose penalties for unavoidable conduct.
States Need More Time
If the EPA moves ahead with its proposal, several states urged it to provide them more time to revise their affected permitting regulations. The proposal would give states one year to remove the emergency affirmative defenses, which the states said would not be sufficient.
Environmental regulators from Idaho and Arkansas both said 12 months would not be enough time to follow all of the administrative procedures required to alter existing state regulations.
Arkansas said the rulemaking process for air quality regulations can take anywhere from eight months to 18 months, depending on whether the action is controversial. With litigation likely if the EPA issues a final rule on the Title V permitting regulations, any changes Arkansas would need to make to its own rules would likely be controversial and require more time, according to state regulators.
Idaho regulators said the EPA's proposed 12-month implementation period would be “legally impossible” for the state to meet, given its own rulemaking process. Any rule changes must be negotiated, subject to a public comment period, issued by the Board of Environmental Quality then approved by the state legislature, according to the Idaho Department of Environmental Quality.
Arkansas recommended that the EPA give states at least 18 months to make the required changes, with possible extensions of up to two years. Idaho asked the agency to provide states with 24 months to make the necessary revisions.
Push for Stronger Rule
While the EPA heard from industry and state opponents of its proposal, the agency also receivedcomments from an environmental advocacy organization that would like to see an even stronger final rule.
The Environmental Integrity Project urged the agency to go beyond its proposal and address state permitting programs that incorporate affirmative defense provisions by reference. The EPA's proposed list of affirmative defense provisions in state programs that may eventually need to be removed only includes states that have those emergency provisions within their program rules, according to the advocacy organization.
“This approach would let states like Texas off the hook,” the Environmental Integrity Project said. “Incorporating an affirmative defense or other illegal provision by reference has the very same effect as spelling out the words within the state's Title V rules.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96369494&vname=dennotallissues&fn=96369494&jd=96369494
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EPA Delays With Self-Audit Oversight Prompt Push To Boost States' Role
Aug 26, 2016 | Inside EPA
By David LaRoss
Some industry attorneys are calling for EPA to allow states to take a leading role in reviewing facilities' self-reported violations of environmental laws rather than employing the agency's own self-audit policy, saying the federal program is outdated and has limited resources that have led to delays responding to submissions.
In a recent interview with Inside EPA, attorney James C. Morriss III said industry is seeing increasing delays in EPA's responses to self-audits of environmental violations under the policy that credits facilities for notifying regulators of such incidents, including through reduced civil and criminal penalties.
"For industry, a big priority with submitting an audit report is how soon you will get a response. When EPA says it's going to take a long time and there's no deadline they can commit to, a primary reason for doing an audit -- certainty or closure -- is gone," he says.
However, Morriss and other attorneys are arguing that it is unrealistic to expect EPA to overhaul and devote more staff to the audit program, especially at a time of dwindling agency enforcement resources. Expanding the program "is very unlikely in the current fiscal and political climate," he said.
EPA launched its self-audit policy in 2000 to provide incentives such as penalty mitigation and avoiding criminal prosecution to companies that voluntarily disclose and correct violations, as long as the disclosure meets certain EPA standards.
In 2015, the agency launched a new website to allow for digital reporting -- a move that stakeholders welcomed as showing renewed federal interest in the audit program after appearing to lose focus on the initiative.
Morriss, together with attorneys Ashley T. K. Phillips and Leslie Reynolds, argue in a white paper Morriss presented at the State Bar of Texas Environmental Superconference Aug. 5 in Austin, TX, that a better approach would be to craft memoranda of understanding (MOUs) with states that have their own audit policies. This approach would give the states primacy in reviewing self-audits from facilities within their borders, within specified limits. For instance, the paper says, EPA might retain authority over violations of certain statutes.
"If compliance is a common goal and a state audit program is effective in achieving that goal for both state and delegated federal programs, why not encourage that success by deferral and 'delegation' in the audit arena as well? Why not encourage the growth of effective state programs? This could be accomplished by expanding the EPA's Audit Policy to recognize state counterparts in conjunction with MOUs on collaborative enforcement," the paper says.
Morriss in the Aug. 23 interview with Inside EPA added, "Ideally, the path forward would involve [EPA officials] evaluating a state program and concluding that 'we're comfortable that the outcome from the state program is what we would have gotten had we done it.'"
Longer Waits
Part of the reason for the call to bolster states' role in overseeing industry self-audits, Morriss said, is that facilities that use the online agency portal are seeing long waits for EPA to process their reports and craft responses that include an enforcement agreement.
The exception, he said, is for violations of the Emergency Planning and Community Right-to-Know Act (EPCRA), which governs reporting on releases of pollutants covered by other laws.
"EPCRA is a reporting issue, it's easily identified through a review of your reporting records, and it's exclusively a federal violation. That makes it ideally suited for processing quickly," he said.
Morriss told Inside EPA that the agency perspective appears to be that the audit program should be a low priority because it is little-used, but argued that a more responsive regime would see significantly more participation from the regulated community.
"The agency's perspective on the utility of the program is somewhat skewed because they're viewing it based on the number of participants, and the number of participants is based on the quality of the program," Morriss says.
Despite relatively low participation in the federal policy, he said, "there's a markedly different trend at the state level, where the product is different and you see more facilities using it. . . . People are kind of voting with their feet."
Stakeholders have said that the audit program appears to conflict with EPA's "next generation" enforcement framework, which relies less on site inspections to force compliance, and shifts the agency's focus to advanced monitoring, electronic reporting and self-implementing rules. That policy appears to be in tension with the audit program, which treats self-reporting of facilities' violations as a special case rather than a matter of course.
EPA did not immediately respond to a request for comment.
http://insideepa.com/daily-news/epa-delays-self-audit-oversight-prompt-push-boost-states-role
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State Should Look Beyond Cap And Trade To Develop More Effective Climate Policies
Aug 26, 2016 | The Sacramento Bee
By Oscar Reyes
California’s cap-and-trade scheme is in trouble. The latest carbon auction announced Aug. 23 failed to sell two-thirds of the available pollution permits, a third successive flop. That could leave a significant funding gap for other climate measures, such as weatherizing old homes, which are supposed to be paid for by revenue from these state-run auctions.
Tying the fate of important climate actions to the sale of carbon permits has snatched defeat from the jaws of a broader victory in reducing greenhouse gas emissions.
And in a further blow to the credibility of cap and trade, it is regulations such as fuel-emission standards rather than the carbon market that is helping California meet its climate targets. In fact, perversely those same regulations are undermining the cap-and-trade market as they reduce the price of carbon by suppressing demand for the permits. California is bizarrely confronting the greatest challenge humanity has ever faced with policies that work against each other.
Contradictions between cap and trade and other, more successful climate policies have appeared wherever carbon trading has been tried.
The European Union Emissions Trading System, the world’s largest and longest-running carbon market, provides a good example. Too many pollution permits were made available as a result of special pleading from industry lobbyists and the price collapsed. Since its launch in 2005, the price has never been sufficient to encourage the ambitious policies needed to convert the EU to a lower-carbon emitting region.
Cheerleaders for the Emissions Trading System point to the fact that overall emissions are down, but a closer look at the economics shows that this has little to do with cap and trade. The EU’s extended economic slump, alongside the positive effects of renewables and energy efficiency targets, are the key factors.
Yet instead of extending climate and energy targets that have proved successful, lobbyists are now using the low-carbon price to pressure EU policymakers to weaken effective regulation. The EU’s post-2020 renewables targets have consequently been gutted, while its new energy efficiency target merely reflects existing practice.
These failings have been compounded by the use of international carbon offsets, which are gradually being phased out in Europe but could be replicated here.
Carbon offsets – in which polluters buy largely theoretical carbon reductions elsewhere in order to continue polluting – have been beset by controversy over their effectiveness. Many of the EU offsets suffered a “total lack of environmental integrity,” as the EU’s top climate diplomat later admitted.
Offsets also raise social justice concerns as they adversely affect low-income communities living in pollution hotspots in industrialized nations, as well as marginalized communities in developing countries whose lands and livelihoods are often seized in the name of conservation.
Some will point to the fact that carbon auctions generate revenue that can be used for high-speed rail, electric vehicles and even local climate plans. But the repeated failure to sell a majority of pollution permits shows that carbon auctions are not up to the task.
Investment requires certainty, but carbon markets are volatile by nature. Carbon is an odd commodity, the supply of which is subject to government decisions that can be swayed by court cases and corporate lobbyists. Carbon taxes, by contrast, pay a predictable – and generally rising – fee for pollution.
The legal uncertainty surrounding the future of cap and trade, particularly beyond 2020, offers an opportunity to develop more effective climate policies. Instead of doubling down on carbon trading, California should now be looking to tighter performance standards and emissions limits, while at the same time developing a carbon tax or reaching into state budgets to fund programs that will help local economies make the transition to a post-carbon age.
http://www.sacbee.com/opinion/op-ed/soapbox/article97914327.html#storylink=cpy
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G-20 Meeting Could Include Talk of Climate Policies
Aug 29, 2016 | BNA Daily Environment Report
By Alan Kovski
The cooperative relationship between the Obama administration and the Chinese government on climate change bodes well for possible attention to the subject when world leaders gather at the next Group of 20 summit, observers suggested Aug. 26.
The Sept. 4-5 summit in Hangzhou, China, is expected to focus primarily on efforts to improve the world economy, but climate change could be a noteworthy topic during the G-20 gathering, according to members of the World Resources Institute speaking to reporters during a teleconference.
It would be a missed opportunity if the heads of state and top diplomats at the meeting did not discuss phasing out subsidies for fossil fuels, said Helen Mountford, the institute's director of economics.
One thing to look for at the G-20 summit is discussion of ways for nations to help themselves and others meet their climate commitments, said Andrew Light, a World Resources Institute fellow. That could be more substantive than talk about when this country or that country might formally sign the 2015 Paris Agreement on climate change, he said.
President Barack Obama will be at the summit, along with the heads of state of China, India, Russia and other G-20 countries. Obama has made a point of joining with China's President Xi Jinping over the past three years to announce parallel policy positions on efforts to control greenhouse gas emissions contributing to climate change.
Coming up sooner than the G-20 summit is a visit Aug. 29-31 to India by Secretary of State John Kerry and Commerce Secretary Penny Pritzker.
Kerry and Pritzker will meet with Indian officials to discuss strategic and commercial relations, and climate change issues could be substantial points of discussion, suggested Light, who previously worked in the State Department as a senior adviser to the special envoy on climate change.
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