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Industry Can't Narrow Scope of Chemical Risk Evaluation: EPA
Sep 7, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers that want the Environmental Protection Agency to evaluate the risks of certain high-hazard chemicals may not narrow the scope of the agency's assessment, according to newly posted EPA guidance. -
Why Your Toothpaste Still Has Triclosan
Sep 6, 2016 | The New York Times
By Catherine Saint Louis
Last week, the Food and Drug Administration effectively banned the antibacterial chemical triclosan from soaps. -
DEHP Linked To Hydrocele Genital Anomaly In Newborns
Sep 7, 2016 | Chemical Watch
By Philip Lightowlers
A team of US scientists has shown that exposure to phthalates, in early pregnancy, increases the risk of newborn boys having genital abnormalities. -
Congress Ready For Final Stretch On 800-Page Energy Reform Bill
Sep 7, 2016 | The Hill - E2 Wire
By Devin Henry
Congress is going down to the wire on a bill to rewrite federal energy policy. Lawmakers on both sides of the aisle, industry groups and businesses have long hoped this Congress would produce the first major overhaul of federal energy laws in a decade. -
Tax Incentive Title Sought for Energy Legislation
Sep 7, 2016 | BNA Daily Environment Report
By Ari Natter
Lawmakers should consider adding a tax title to broad energy legislation being considered by House and Senate negotiators, the Business Council for Sustainable Energy said in a letter Sept. 6. -
Recent Quake May Rattle Oklahoma Fracking Case
Sep 7, 2016 | BNA Daily Environment Report
By Steven M. Sellers
A new magnitude 5.6 earthquake near Pawnee, Okla., should boost the Sierra Club's legal arguments that fracking and other underground oil and gas activities pose imminent risks to the environment, the advocacy group said. -
The Connection Between Earthquakes and Fracking
Sep 7, 2016 | Forbes
By James Conca
A magnitude 5.6 earthquake shook Oklahoma on Saturday, tied for the strongest quake ever recorded in the state. Odds are it was triggered by fracking operations – specifically the subsurface injection of fracking wastewater. -
Company Agrees to Temporarily Halt Some North Dakota Pipeline Work
Sep 6, 2016 | Reuters (In The New York Times)
By Julia Harte and Mohammad Zargham
A Native American tribal chairman said his people were "disappointed" that a company agreed on Tuesday to temporarily halt construction of an oil pipeline only in some but not all parts of North Dakota where the tribe says it has sacred sites. -
Dakota Access Pipeline Must Not Be Built
Sep 6, 2016 | The Hill - Congress Blog
By David Archambault II
The desecration we feared for months came to pass this weekend. Since April, citizens of my Tribe, the Standing Rock Sioux, have camped on the edge of our reservation to protect our ground, water and sacred sites. -
Judge Freezes Dakota Access Work Near Missouri River
Sep 6, 2016 | E&E News PM
By Ellen M. Gilmer
Developers of the controversial Dakota Access oil pipeline may continue construction in an area near a Missouri River reservoir believed by an American Indian tribe to hold burial grounds and other artifacts but must halt plans for work closer to the river. -
Offshore Oil, Gas Production Regulations Updated
Sep 7, 2016 | BNA Daily Environment Report
By Alan Kovski
Stricter safety and environmental protection standards for offshore oil and gas production are required under a final rule an Interior Department agency released Sept. 6. -
(ACC Mentioned) EPA Sends Vapor Intrusion Rule To OMB For Review
Sep 6, 2016 | Inside EPA
EPA has sent to the White House Office of Management & Budget (OMB) for review its final rule for adding vapor or water intrusion as a contaminant pathway for placing a site on the Superfund National Priorities List (NPL), with the agency looking to issue a final rule by the end of the year. -
Paris Climate Deal May Enter Into Force in 2017, HSBC Says
Sep 7, 2016 | BNA Daily Environment Report
By Jessica Shankleman
The accession on Sept. 3 by China and the U.S. to the Paris climate agreement may mean the deal comes into effect by early next year, according to HSBC Holdings Plc. -
Climate Probe Opponents Increasingly Turn to Litigation
Sep 7, 2016 | BNA Daily Environment Report
By Rachel Leven
Opponents of a climate change probe brought by 17 attorneys general are increasingly fighting back in courts, including in a lawsuit filed by the Competitive Enterprise Institute against the New York attorney general.
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Industry Can't Narrow Scope of Chemical Risk Evaluation: EPA
Sep 7, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers that want the Environmental Protection Agency to evaluate the risks of certain high-hazard chemicals may not narrow the scope of the agency's assessment, according to newly posted EPA guidance.
Companies requesting a full risk evaluation for any of the seven highly persistent, bioaccumulative and toxic (PBT) chemicals covered by Section 6(h)(5) of the amended Toxic Substances Control Act may not specify a narrow use or set of uses for the agency to evaluate, the agency said in questions and answers it posted Sept. 2.
Companies also may not later withdraw a risk evaluation request made for any of these seven chemicals, the agency said.
The agency's questions and answers address Section 6(h)(5) of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. Law 114-182), which amended TSCA effective June 22. That section gives chemical manufacturers 90 days after the law's enactment to nominate highly persistent, bioaccumulative and toxic chemicals for risk evaluation, provided the company nominates the chemical by Sept. 19. The chemicals must be on the agency's Work Plan list of substances it already planned to evaluate prior to Lautenberg becoming law. Companies also must agree to pay 50 percent of the agency's risk evaluation costs.
Unless nominated by industry and selected by the EPA for risk evaluation, each of the seven chemicals will receive an expedited review. That means the agency will presume the chemical poses a hazard and focus on its use and the extent to which people or the environment are exposed to it.
The expedited review also means that the EPA must propose—within three years of the law's enactment—risk management rules that would reduce exposure “to the extent practicable.” Those proposed risk management rules must be issued as final regulations 18 months later.
Seven Chemicals Covered by Specific TSCA Provision
The seven chemicals that are covered by Section 6(h) are:
• decabromodiphenyl ethers (DecaBDE) (CASRN 1163-19-5), a flame retardant that had a national production volume of 18 million pounds in 2011, the most recent year for which the EPA received information under its Chemical Data Reporting (CDR) rule. Companies that reported making or importing decaBDE in 2011 included Albemarle Corp., Berkshire Hathaway, ICC Industries Inc. and Israel Chemicals Ltd., also known as ICL;
• ethanone, 1-(1,2,3,4,5,6,7,8-octahydro-2,3,5,5-tetramethyl-2-naphthalenyl)- (CASRN 54464-59-4), which the EPA says is widely used in consumer products and toxic to aquatic life. The Procter & Gamble Co. was the sole U.S. producer or importer in 2011; EPA withheld production levels to protect proprietary information;
• ethanone, 1-(1,2,3,4,5,6,7,8-octahydro-2,3,8,8-tetramethyl-2-naphthalenyl)- (CASRN 54464-57-2), which the EPA says also is widely used in consumer products and somewhat toxic to aquatic life. Companies including International Flavors & Fragrances Inc., Firmenich Inc., and Procter & Gamble made or imported the chemical in a range of 1 million to 10 million pounds in 2011;
• hexachlorobutadiene (CASRN 87-68-3), a possible human carcinogen subject to reporting under the agency's Toxics Release Inventory. There are no companies that reported making or importing hexachlorobutadiene in 2011, but in its 2014 TRI submission Occidental Chemical Holding Corp. in Geismar, La., reported releasing nearly 2,000 pounds into the air; releases by other companies were significantly smaller;
• pentachlorothio-phenol (CASRN 133-49-3), which is used to make rubber; however, no company reported making or importing it in 2011;
• phenol, isopropylated, phosphate (3:1) (CASRN 68937-41-7), a flame retardant with a 2011 national production volume of 15 million pounds. Companies that reported making or importing it included Chevron Corp., ICL and Special Materials Co.;
• 2,4,6-tris(-tert-butyl)phenol (CASRN 732-26-3), which the EPA said is widely used in consumer products. Albemarle Corp. and SI Group Inc. reported making or importing the chemical in 2011. The EPA withheld the production volume to protect proprietary information.
‘Propitious’ Time to Weigh in on EPA's Interpretations
Mark Duvall, an attorney who specializes in TSCA at Beveridge & Diamond PC in Washington, D.C., told Bloomberg BNA that the agency's PBT questions and answers are another example of the good job the EPA is doing by letting interested parties know its initial interpretation of the Lautenberg Chemical Safety Act.
The agency, however, has said it will be updating these initial guidance documents, he said.
If a company, trade association or other interested party thinks Congress intended a different interpretation of the law “now would be a propitious time to tell EPA,” Duvall said. For example, he said, the agency's statement that companies requesting a PBT evaluation wouldn't have a say in the scope of the evaluation is one issue that may be ripe for alternative perspectives.
Richard Denison, lead senior scientist with the Environmental Defense Fund, told Bloomberg BNA that the fund and other nongovernmental organizations support the agency's conclusion that chemical manufacturers may not narrow the scope of a risk evaluation—even if they are paying for some or all of the evaluation's costs.
“The new law's allowance for companies to request and pay for risk evaluations was intended to expand the number of chemicals being reviewed and provide companies with some ability to have a risk evaluation done on a chemical sooner than would otherwise be the case through the normal prioritization process,” the defense fund told the EPA in comments it recently submitted about a risk evaluation rule the agency is developing.
The law never was intended for the conduct of risk evaluations undertaken in response to industry requests to deviate in any manner from those the EPA initiates on its own, the defense fund said.
Unanswered Question Regarding Fees, Scope
The EPA's questions and answers didn't address at least one issue, Duvall and Denison said.
The EPA's document repeats Lautenberg's requirement that companies pay all or some of the costs of risk evaluations they request.
The agency didn't say what would happen if a manufacturer asks the agency to conduct a risk evaluation on particular uses of a chemical and the EPA expands the scope of its evaluation, Duvall and Denison said.
The open question, they said, is: Would the company pay for only that portion of the assessment it requested or would it have to pay for the full risk evaluation?
Denison said nothing in the law would allow a company to request a risk evaluation and then pay only for the portion of the assessment it wanted.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833295&vname=dennotallissues&fn=96833295&jd=96833295
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Why Your Toothpaste Still Has Triclosan
Sep 6, 2016 | The New York Times
By Catherine Saint Louis
Last week, the Food and Drug Administration effectively banned the antibacterial chemical triclosan from soaps.
But you can you still find it in your toothpaste.
That’s because the best-selling toothpaste brand, Colgate Total, convinced the F.D.A. that the benefit of triclosan in toothpaste outweighs any risks.
Toothpastes that contain triclosan have “demonstrated to be effective at reducing plaque and gingivitis,” said Andrea Fischer, an F.D.A. spokeswoman. Before approving the toothpaste in 1997, the agency requested the Colgate-Palmolive company to conduct toxicology studies, and the F.D.A. ultimately decided it was safe and effective.
“Based on scientific evidence, the balance of benefit and risk is favorable for these products,” Ms. Fischer said on Tuesday.
Colgate Total is the only toothpaste in the U.S. that contains triclosan. For some critics, the decision to take triclosan out of topical products, but leave it in an oral product is a bit of a head scratcher.
“We put soap on our hands, and a small amount gets into our body,” said Rolf Halden, the director of the Biodesign Institute at Arizona State University, who has tracked triclosan for years. But through the gums, “chemicals get rapidly absorbed into the bloodstream.”
In a statement, Colgate-Palmolive spokesman Thomas DiPiazza said the product has undergone a far more rigorous safety review than other toothpastes. When the company sought approval to use triclosan in 1997, it conducted a comprehensive evaluation of human safety of triclosan as part of its new drug application. The review included “carcinogenicity, reproductive and developmental toxicity, eye and skin irritation, and short term and long term toxicity,” he said.
The original F.D.A. submission for Colgate Total contained 98 volumes and included more than 100 toxicology studies, and the company provides monitoring and safety updates annually, said Colgate.
“The full weight of scientific evidence amassed over 25 years continues to support the safety and efficacy of Colgate Total,” he said.
The antimicrobial triclosan was first used by surgeons to sterilize hands before operating. But amid a rash of germ phobia in the late 1990s, consumer products firms began adding the chemical and others like it to everything from soaps and deodorants to laundry detergents and even baby toys. When Colgate added triclosan to its toothpaste, debuting Colgate Total in 1997, it created a blockbuster, quickly gaining market share to become a best seller.
What happens when you add triclosan to toothpaste? In 2013, an independent review of 30 studies by The Cochrane Database of Systematic Reviews concluded that toothpastes with triclosan and fluoride outperformed those with only fluoride on several counts. When used for six to nine months, triclosan-fluoride toothpastes reduced plaque severity by 41 percent more than fluoride pastes alone. The triclosan-fluoride combination reduced gum inflammation by 22 percent more and gum bleeding by 48 percent more than fluoride alone.
For the truly dedicated, two to three years of using triclosan toothpaste showed a 5 percent drop in cavities compared to brushing with fluoride paste alone.
But soon experts began to worry that widespread exposure to germ fighters in everyday products could lead to new strains of resistant bacteria. Studies in animals have shown that triclosan and similar chemicals can disrupt thenormal development of the reproductive system and metabolism. Last week’s decision by the F.D.A. to ban triclosan in soaps came after experts pushed the agency to regulate antimicrobial chemicals, warning that they risk scrambling hormones in children and promoting drug-resistant infections.
Responding to the F.D.A. decision, Colgate’s Mr. DiPiazza noted that the recent F.D.A. review was less rigorous than the agency’s 1997 review. Furthermore, he said, “the agency did not conclude that triclosan in soap was unsafe or ineffective,” just that soap manufacturers had not submitted adequate safety evidence or proof their products were more effective than non-antibacterial soap.
He also cited the Cochrane review study that demonstrated the clear benefits of triclosan toothpaste, with no health risks. “There do not appear to be any serious safety concerns” after three years of use, the Cochrane authors concluded.
But Dr. Halden, the scientist from Arizona state, said that the Cochrane review wasn’t looking at the most serious health concerns. The review wasn’t “designed to look at hormonal effects, nor did they carry on long enough to measure the outcomes we are concerned about such as endocrine disruption,” Dr. Halden said.
Mae Wu, a lawyer for the Natural Resources Defense Council, which filed a lawsuit in 2010 to force the F.D.A. to decide about antibacterial soaps, thinks consumers should avoid using triclosan toothpaste.
“It’s aimed at preventing gingivitis, so if you’re at risk of that you might consider it,” Ms. Wu said. “But for anyone else, it may do more harm than good.”
What do dentists think? Dr. Richard Niederman, a dentist and the chairman of the epidemiology department at the New York University College of Dentistry, isn’t particularly worried about his patients using triclosan-containing toothpaste.
However, Dr. Niederman, whose university has received funds from Colgate for cavity-prevention programs in New York City, said consumers have the option to switch to other products containing stannous fluoride. Stannous fluoride is an antimicrobial that also helps rebuild tooth enamel.
“I would tell my patients if they are concerned about triclosan that stannous fluoride is also very effective for reducing plaque and gingivitis,” said Dr. Niederman.
Asked why he wasn’t worried about triclosan-containing toothpastes, he said, “I’m not an alarmist.”
http://www.nytimes.com/2016/09/07/well/live/why-your-toothpaste-has-triclosan.html
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DEHP Linked To Hydrocele Genital Anomaly In Newborns
Sep 7, 2016 | Chemical Watch
By Philip Lightowlers
US epidemiological study highlights sensitive indicator of phthalate exposure
A team of US scientists has shown that exposure to phthalates, in early pregnancy, increases the risk of newborn boys having genital abnormalities.
The researchers found that for every factor of ten increase in the sum of metabolites of di(2-ethylhexyl) phthalate (DEHP) in urine during the first trimester of pregnancy, there was a statistically significant 2.5-fold increase in having an anomaly or a three-fold increase in hydrocele alone.
Hydrocele is a retention of fluid around the testis, which is common and normally resolves itself in newborn, but is a symptom of abnormal development.
The researchers conclude the study “suggests that prenatal exposure to DEHP may exert adverse effects on genital development in utero, leading to higher incidence of hydrocele”.
They recommend that future studies include hydrocele in their examinations.
The research team, led by Sheela Sathyanarayana from Washington School of Medicine in Seattle, studied a group of 371 mothers and sons from California, New York State, Minneapolis and Seattle between 2010 and 2012. The data was available from The Infant Development and Environment Study (TIDES), which measured urinary phthalate metabolites in mothers and monitored birth outcomes.
The team report in their paper, published in Environmental Research, that few cases of hypospadias and undescended testis occurred in the group, but the most common abnormality was hydrocele.
The study group included:30 cases of hydrocele;five cases of undescended testis;three cases of hypospadias; andfour with multiple anomalies.
Prenatal exposure to DEHP, and some other phthalates, are known to disrupt male development in rodents, and there has been some evidence that similar effects may be occurring in humans – affecting testicular and semen volume and ano-genital distance.
However, the association with hydrocele is new.
https://chemicalwatch.com/49444/dehp-linked-to-hydrocele-genital-anomaly-in-newborns
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Congress Ready For Final Stretch On 800-Page Energy Reform Bill
Sep 7, 2016 | The Hill - E2 Wire
By Devin Henry
Congress is going down to the wire on a bill to rewrite federal energy policy.
Lawmakers on both sides of the aisle, industry groups and businesses have long hoped this Congress would produce the first major overhaul of federal energy laws in a decade.
As members return from their summer recess, they’re closer than they have been all session to that goal — but there’s a long way to go to get a final energy bill done.
At issue is a nearly 800-page bill to reform federal laws dealing with energy generation, transportation, security and trade.
The legislation, crafted in the Senate by Energy and Natural Resources Committee ChairwomanLisa Murkowski (R-Alaska) and ranking member Sen. Maria Cantwell (D-Wash.) and by Republicans in the House, aims to streamline federal energy policies, expand liquefied natural gas exports, renew a federal conservation fund, encourage energy efficiency and protect the grid from cyberattacks.
The Senate voted to go to a conference committee with the House just before the August recess, setting up the scramble to the finish line this year. Members will hold their first conference committee meeting on Thursday.
The energy bill has progressed in fits and starts over the course of this Congress. Members of both parties committed to forging an energy overhaul as early as 2014 and held a series of hearings on federal energy policies early in 2015. Both chambers had introduced versions of a reform package by the end of the year.
But the process has been a messy one, with filibusters in the Senate, a veto threat in the House and now promised fights over Republican policies in a conference committee.
Lawmakers have cleared away several of the issues that have held up this process so far. They will not, for example, attach aid for the Flint, Mich., water crisis to this bill, a question that produced a Democratic filibuster and stalled consideration of the legislation for weeks earlier this year.
Senate leaders, including Murkowski, have also promised to avoid adding anything that has attracted a veto threat from President Obama, such as several provisions the House GOP included in its version of the bill.
“I will reiterate my personal commitment to a final bill that can pass both chambers and be signed into law by the president,” Murkowski said in July. “Now, that doesn’t mean that we’re going to unilaterally disarm ourselves in conference negotiations, but my objective here is to deliver a law.”
There are several barriers remaining for final passage of the energy bill, chief among them the prospects for a contentious conference committee and the legislative calendar.
The Senate only voted to go to a conference committee once leaders there dismissed many of the conservative provisions the House had tacked on to its version of the bill earlier this year. These matters, including a GOP bill to fix the California drought and a measure to bypass environmental regulations for energy projects on Native American lands, angered environmentalists so much that they pressured Senate Democrats not to even go to conference with the House.
But those issues will not die quietly, especially for their biggest boosters. Conference committee member Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, in July called it “a little bit bizarre” for Murkowski and others to dismiss the House provisions that had drawn the ire of the White House, greens and others. When the conference committee convenes, members will have to preempt a GOP split over the nature of the final package.
A bigger question might be whether there is enough time for Congress to come together on a rewritten bill. Energy staffers had preliminary discussions about the bill over the recess, but the 43-member conference committee has yet to convene, meaning it will need to craft a bill, clear it through committee, get the White House’s approval and move the bill through both chambers all in the seven weeks remaining on the legislative calendar.
The bill won’t move quickly; House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) in July predicted a final measure would only be possible after November’s elections, meaning it would come up in a lame-duck session that could be dominated by higher-profile fights over federal spending.
The constricted schedule lends itself to a frenzy of late-session lobbying.
Over the recess, several groups wrote letters to lawmakers reminding them of their support for the energy bill. Business groups, for example, shot off three letters in mid-August highlighting their support for energy efficiency standards in the bill; trade groups got in on the game as well, with hydropower associations writing to lawmakers to plug a new report showing big growth in their industry and asking members to “include a strong hydropower title” in a final bill.
“The Chamber [of Commerce] and other business groups have continued to work with staff in the House and the Senate to advance talks through the recess,” said Chamber spokeswoman Megan Van Etten. “We hope that members will return and continue negotiations.”
Greens, though, are set to wage an opposing battle, encouraging members to pull conservative provisions out of the bill or drop the reform package entirely.
Environmentalists say the bill gives too much to fossil fuel industries and provides little for renewable energy sources. The Sierra Club has been “touching base” with senators over the recess, said legislative director Melinda Pierce, and will look to make its case further once Congress returns.
Greens’ concerns raise the possibility that liberals in the Senate could run out the clock on the energy bill this year, raising another barrier for legislation now nearly two years in the making.
“In the rush to legislate, we want to remind folks of some of the more dangerous provisions,” Pierce said.
“Obviously we are hoping that there is no movement and that conference conversations, which I believe really did not happen over the recess, are slow-walked, given that we oppose the bill on the table that the House passed.”
http://thehill.com/policy/energy-environment/294662-congress-ready-for-final-stretch-on-800-page-energy-reform-bill
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Tax Incentive Title Sought for Energy Legislation
Sep 7, 2016 | BNA Daily Environment Report
By Ari Natter
Lawmakers should consider adding a tax title to broad energy legislation being considered by House and Senate negotiators, the Business Council for Sustainable Energy said in a letter Sept. 6.
The energy bill should include tax credits for small wind projects, geothermal heat pumps, fuel cells and other energy sources that were left out of 2015 omnibus spending legislation, which extended credits for wind and solar, the group said in the letter, which was addressed to Republican and Democratic leaders on the House and Senate energy committees.
“In order to maintain a diverse portfolio of beneficial clean energy technologies we encourage Congress to consider a tax title to the energy bill to address the needs of the clean energy tax technologies that were left out of the 2015 end of year tax and spending bills and to formulate and enact the stable, long-term tax policy framework that will support the deployment and use of clean energy technologies in a meaningful way,” said the letter.
The group represents companies such as First Solar and Enel Green Power.
While previous omnibus energy bills, such as the Energy Policy Act of 2005, have had entire titles devoted to tax policy, it remains to be seen if lawmakers would use the current bill (S. 2012) as a vehicle for energy tax extenders, which are opposed by a coalition of conservative groups. Other potential vehicles include omnibus government funding legislation.
Congressional Democrats and groups representing companies such as Sempra Energy, U.S. Gas & Power and DTE Energy have been seeking a five-year extension of the 48(c) investment tax credit, which provides a 30 percent credit for fuel cells and small wind projects and a 10 percent credit for geothermal and combined heat and power projects.
Other tax credits scheduled to expire at the end of the year include incentives for renewable fuel producers, energy efficiency improvements and fuel cell vehicles.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833292&vname=dennotallissues&fn=96833292&jd=96833292
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Recent Quake May Rattle Oklahoma Fracking Case
Sep 7, 2016 | BNA Daily Environment Report
By Steven M. Sellers
A new magnitude 5.6 earthquake near Pawnee, Okla., should boost the Sierra Club's legal arguments that fracking and other underground oil and gas activities pose imminent risks to the environment, the advocacy group said.
The Sept. 3 earthquake is the latest in a string of seismic events in Oklahoma since 2009, according to the U.S. Geological Service. Its strength matches a 5.6 temblor in 2011 that hit another Oklahoma town, about 68 miles to the south.
“This is reminiscent of the earthquake in Prague,” Scott Poynter, of the Poynter Law Group in Little Rock, Ark., told Bloomberg BNA Sept. 6.
Poynter is counsel for the Sierra Club in a suit challenging fracking operations in Oklahoma, Sierra Club v. Chesapeake Operating LLC, W.D. Okla., No. 16-cv-00134, filed 2/16/16.
The Sierra Club brought the case in February against four oil and gas companies under the Resource Conservation and Recovery Act, a federal law governing solid waste disposal.
Cites Danger to Health, Environment
Co-counsel Richard Webster, of Public Justice in Washington, D.C., told Bloomberg BNA Sept. 6 that “our claims allege danger to health and the environment.”
“This quake illustrates that both risks are real,” Webster said in an e-mail.
Defendants in the case include Chesapeake Operating LLC, Devon Energy Production Co., New Dominion LLC and Sandridge Exploration and Production LLC.
Requests for comment from counsel for the companies wasn't successful Sept. 6.
The citizen suit asks the U.S. District Court for the Western District of Oklahoma to order substantial reductions in the amount of wastewater pumped into underground wells in the state, among other steps.
The complaint alleges the spike in earthquakes stems from the injection of wastewater from fracking and other oil and gas development activities into thousands of deep wells around Oklahoma.
The companies contend, however, that the case should be dismissed to allow the Oklahoma Corporation Commission to exercise its regulatory authority over the state's disposal wells.
Poynter said the Sept. 3 quake shows that the courts shouldn't wait for the state agency to act.
Threat Seen of Larger Quakes
“In moving to dismiss the RCRA lawsuit, the defendants told the federal court to not interfere with the Oklahoma Corporation Commission, that it was doing its job, what the OCC was doing was working, and no more threat existed,” Poynter said.
“Obviously, that has been proven untrue,” Poynter said. “Moreover, our experts tell us the threat of even larger earthquakes still loom.”
That risk includes a possible breach of a major oil tank farm in Cushing, Okla., a facility that holds millions of barrels of crude oil for distribution, according to an amended complaint filed in the case.
“I haven't seen any reports of damage at the oil field in Cushing” yet, Poynter said. But, “This just happened over the Labor Day weekend, and we just don't know right now. They may be doing the assessments now.”
The OCC said on a notice posted to its website that the commission is in the process of ordering theshutdown of disposal wells within a 211-square-mile area around Pawnee.
Causation Questions Linger
A central question in the litigation concerns whether the recent earthquakes in Oklahoma, like the one in Prague, and now the one in Pawnee, were really caused by the nearby fracking-related disposal wells.
In a recent motion to dismiss the case, for example, New Dominion LLC argued that “general assumptions regarding apparent correlations between wastewater disposal and seismicity” may “yet turn out to be inaccurate.”
Yet, the Sept. 3 quake is consistent with a recent wave of earthquake activity over the last seven years, and some studies link the trend to fracking, according to a USGS website on the event.
“Scientific studies have linked the majority of this increased activity to wastewater injection in deep disposal wells in several locations,” according to the USGS.
Premature to Cite Cause
But the USGS also said it was too early to say whether the quake was caused by other factors or that it was caused by human activity at all.
“Making a strong scientific case for a causative link between a particular human activity and a particular sequence of earthquakes typically involves special studies devoted specifically to the question,” the USGS said.
A decision on the companies’ motions to dismiss is pending.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833281&vname=dennotallissues&fn=96833281&jd=96833281
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The Connection Between Earthquakes and Fracking
Sep 7, 2016 | Forbes
By James Conca
A magnitude 5.6 earthquake shook Oklahoma on Saturday, tied for the strongest quake ever recorded in the state. Odds are it was triggered by fracking operations – specifically the subsurface injection of fracking wastewater.
There is a direct connection between fracking and earthquakes in the central and eastern United States (Figure 1). But the earthquakes are not a result of fracking itself. They mostly result from the injection of fracking wastewater at depths well-below the fracking horizon. The larger the volumes of wastewater injected into the subsurface, the larger the earthquakes can be.
The United States Geological Survey (USGS) just produced aseismic hazard forecast for 2016 for the central and eastern United States that includes both induced and natural earthquakes. While almost all of the fracking-induced or triggered earthquakes are small – less than magnitude 3 and can’t be felt by most people – enough are above 3 that the USGS predicted a 5% to 17% chance of significant damage to homes and structures in just the year 2016 for areas of north-central Oklahoma and southern Kansas where fracking occurs. Presumably, this will continue each year as long as fracking continues close to the present rate.
In cases when injection of fracking wastewater induces earthquakes of larger magnitudes, the earthquakes are most likely the result of reactivation of nearby pre-existing faults by upsetting the subsurface pressure regimes that keep the fault closed.
Invented in 1947, hydraulic fracturing, or fracking, is a technique that improves the production of oil and gas from wells by increasing the number of fractures in the formation through which oil and gas can flow, and extending the reach of fluid pathways, i.e., fractures, between the formation and the well. Injecting water, plus some specific chemicals, at high pressure into low-permeability, or tight, rocks, fractures the rocks or stimulates slip across pre-existing faults and fractures, allowing for more oil and gas to be accessed by the well. A propping agent, usually sand particles, is also injected to keep the new fractures open.
Fracking takes a few hours to a few days, followed by a period where the fracking fluid is allowed to flow back to the surface where it is collected for disposal, treatment, or reuse. It is the disposal of this fluid by injection into deep wells that causes the earthquakes.
The dramatic increase in fracking for oil and gas in America since 2006 (Figure 2) has caused some regions to experience frequent earthquakes, regions that have not had many in the past. In fact, some areas in north-central Oklahoma and southern Kansas now have hazards from fracking-related induced earthquakes that are similar to parts of California where earthquakes are caused by natural tectonic forces like plate collisions and volcanism.
On the other hand, the fracking craze is responsible for the dramatic drop in carbon emissions in America because it has provided enough gas at cheap prices for natural gas to replace coal. Our emissions are now at a 27-year low.
Just another human-environmental conundrum that makes policy decisions difficult.
It’s important to understand what fracking does and does not do:
- Fracking is generally NOT the cause of induced earthquakes. Wastewater disposal is the primary cause of the recent increase in earthquakes in the central United States associated with fracking
- Not all wastewater injection wells induce earthquakes
- Wastewater is produced at all wells, not just fracking sites
- Induced earthquakes can occur at significant distances from injection wells and at different depths
The injected fluids change the subsurface dynamics of pressure and friction, allowing things to move that wouldn’t ordinarily move or that wouldn’t move so often. The wastewater is injected into a different rock formation than where the oil or gas is, usually below the production zone.
Fracking itself, and subsequent enhanced recovery operations, inject water into rocks where oil or gas is being removed or where they have already been removed, which doesn’t increase the pressure that much.
However, wastewater injection wells usually inject into pristine rocks, so injection increases pressures much more and makes induced earthquakes more likely. Where there are faults, the increased fluid pressure can push back against the pressure holding the fault closed, thereby allowing the fault to move.
Since wastewater disposal wells typically operate for much longer times than the fracking wells, they tend to inject much more fluid than the fracking operations. Injections responsible for earthquakes above magnitude 3 involve hundreds of thousands of barrels.
Fortunately, most fracking and wastewater injection operations do not induce earthquakes. Either they don’t have high enough injection rates and total water volumes to change the pressures, or they are not close enough, or connected by subsurface fluid pathways, to sufficiently large faults. Because of the complexity of the subsurface geology, earthquakes can be induced 10 miles or more away from the injection point and at greater depths than the injection points.
A similar, but reversed, situation has occurred in southern California. Work by Dr. Kerry Sieh in the 1970s showed that over the last 15,000 years, great earthquakes (M>8) on the southern portion of the San Andreas fault occurred in a regular manner, easily dated to within about ±5 years. The time period varied in a regular and reproducible way. The last great earthquake occurred in 1857, and the work showed that the next “Big One” should have been in 1947.
But we are still waiting for it. Beginning at about 1900, extensive drilling for oil occurred in the Los Angeles Basin and surroundings. At the same time, the population began to rapidly grow and we began extracting groundwater at an amazing rate. We extracted so much oil and water that we completely changed the subsurface dynamics of the San Andreas fault system and rendered useless our knowledge of the previous earthquake frequency. We now have no idea when the “Big One” will occur. Or how big it will be, considering that we have locked it up tighter than it ever was.
There really are consequences to human activities.
And more than just physical consequences. Fracking-induced earthquakes are a real grey area in home insurance. Amy Bach, executive director of United Policyholders, says man-made quakes are “new territory” in insurance coverage, and the home-owner should ask directly whether fracking is covered as a cause. Only 15% of homeowners in Oklahoma carry earthquake insurance, but that’s up 500% from just a five years ago in 2011 when the strongest earthquake in that state’s history damaged over a dozen homes.
With this latest quake, expect that number to jump again.
With respect to fracking, there are other instances where fracking itself has been painted with issues that actually relate to other processes. 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). And other toxic organics coming from fracking sites, like benzene, toluene, ethyl benzene, and xylene, are also not from frackingbut from other activities like 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 toxic emissions from fracking sites.
So if we want to address the environmental and safety issues surrounding fracking, while still benefitting from its lower carbon emissions relative to coal, we have to back up and address the other activities that occur onsite.
To decrease fracking-induced earthquakes, maybe we need to figure out another way to handle the wastewater.
http://www.forbes.com/sites/jamesconca/2016/09/07/the-connection-between-earthquakes-and-fracking/#56d1512d7f65
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Company Agrees to Temporarily Halt Some North Dakota Pipeline Work
Sep 6, 2016 | Reuters (In The New York Times)
By Julia Harte and Mohammad Zargham
WASHINGTON — A Native American tribal chairman said his people were "disappointed" that a company agreed on Tuesday to temporarily halt construction of an oil pipeline only in some but not all parts of North Dakota where the tribe says it has sacred sites.
After violent clashes over the weekend between protesters and security officers near the construction site, the Standing Rock Sioux tribe and a neighboring Native American tribe had asked the U.S. District Court for the District of Columbia on Sunday for a temporary restraining order against Dakota Access, the company building the pipeline.
U.S. Judge James Boasberg said on Tuesday he had granted in part and denied in part the temporary restraining order, and that he would decide by Friday whether to grant the tribes' larger challenge to the pipeline, which would require the U.S. Army Corps of Engineers to withdraw permits for the project.
A group of firms led by Energy Transfer Partners is building the 1,100-mile (1,770-km) pipeline. The $3.7 billion project would be the first to bring crude oil from Bakken shale, a vast oil formation in North Dakota, directly to refineries in the U.S. Gulf Coast.
Standing Rock Sioux Tribal Chairman David Archambault II said in a statement the ruling puts the tribe's "sacred places at further risk of ruin and desecration."
Dakota Access agreed to halt activity until Friday in an area representing about half the total space requested in the tribes' temporary restraining order.
It did not include ancient burial and prayer sites recently discovered by a historic preservation officer for the tribe, Jan Hasselman, an attorney for the Standing Rock Sioux, told a news conference on Tuesday.
Hasselman said the tribe would now wait for Boasberg's decision on Friday and pursue appeals if the judge rules against the tribe.
Dakota Access accused the Standing Rock Sioux during Tuesday's hearing of inciting the pipeline's opponents to break the law. The company's lawyers could not immediately be reached for comment after the ruling.
Saturday's protests were triggered, the tribes said, when the pipeline company used bulldozers to destroy sacred tribal sites whose locations had been identified in court documents filed on Friday.
Tomas Alejo, who participated in Saturday's demonstrations, said in an interview that the security officers had formed a "barricade" with guard dogs to prevent protesters from accessing the bulldozers, and that the dogs bit children and tribal elders.
Dakota Access said in its reply to the requested restraining order that the protesters "stampeded" the construction area and attacked the dogs and security officers with makeshift weapons, and that the bulldozers did not destroy important historical sites.
http://www.nytimes.com/reuters/2016/09/06/us/06reuters-usa-pipeline-nativeamericans.html
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Dakota Access Pipeline Must Not Be Built
Sep 6, 2016 | The Hill - Congress Blog
By David Archambault II
The desecration we feared for months came to pass this weekend.
Since April, citizens of my Tribe, the Standing Rock Sioux, have camped on the edge of our reservation to protect our ground, water and sacred sites.
Energy Transfer Partners is attempting to construct a 1,200-mile oil pipeline through the land our Tribe has called home since time immemorial.
A U.S. District Court judge is expected to rule soon on our motion that the Army Corps of Engineers fast-tracked approval for the pipeline without properly consulting the Standing Rock Sioux.
Last Friday, we filed court papers showing the route of construction would destroy known and significant burial sites, cairns, stone prayer rings and artifacts.
Within 24 hours, Energy Transfer Partners brought their bulldozers.
On a holiday weekend—only days away from a decision in our case—they ransacked the ground, clearing topsoil across a two-mile stretch. Our sacred sites were ravaged and ruined by an oil company focused solely on profit.
On Sunday morning, under the cover of dark, they came back to finish the job.
Imagine heavy machinery invading your family cemetery, plowing through graves, demolishing headstones, knocking down the church next door.
Our people are heartbroken. Our history is destroyed. That ground is now hollow.
Federal law requires that Tribes be consulted before construction is approved. As the Chairman of my Tribe, I sent numerous letters to the Corps, requesting consultation and expressing our concerns that the proposed pipeline would threaten our lands and contaminate our water.
Our concerns were ignored.
So we set up camp to protect our ancestors’ resting places. We also came to protect the Cannon Ball and Missouri Rivers from the half-million barrels of oil slated to pass through the pipeline.
We’re doing that not just for the Standing Rock Sioux, but also for the 17 million people living in communities and on farms downstream, whose continued existence depends on the protection of our rivers.
Without clean and dependable sources of water, our Tribe will cease to exist. Without clean and dependable sources of water, we all will cease to exist. As we say, water is life.
Thousands of people understand how critical this fight is, and they’ve come literally to stand with us at our camp along the river. More than 200 Native nations—including the Pawnee and Crow, with whom we have disputes dating back two centuries—have taken action to support us.
Our Native brothers and sisters understand that as sovereign Tribal nations, we have the right to protect our sacred grounds and waters. That right is recognized in the treaties we signed with the United States, and is codified in federal laws.
Our cause is universal. Indeed, last week, the United Nations agreed the Standing Rock Sioux must be consulted before this pipeline is built. Proceeding without doing so violates Article 19 of the U.N. Declaration of the Rights of Indigenous Peoples, which the United States endorsed in 2010.
Our cause is also local. It’s worth noting that Energy Transfer Partners initially proposed routing their pipeline just north of Bismarck.
Community members there expressed concerns that the pipeline would leak or spill, harming the city’s drinking water. So Energy Transfer Partners moved the route to the border of the Standing Rock Sioux reservation.
We stand with the people of Bismarck in their opposition to a pipeline that threatens their drinking water and, in return, we ask them to stand with us.
Most Americans would like to think the historical U.S. policies that sought to destroy Tribal nations have been discarded and replaced with laws that instead recognize our inherent right to exist. And they have, for the most part.
But when leaders of governments—or corporations like Energy Transfer Partners—threaten to repeat the mistakes of the past, our people and our supporters have a duty to raise their voices.
We have voiced our opposition to this pipeline. We have voiced our opposition to a process that excluded us, in violation of federal law.
Our sacred land was desecrated this weekend.
If this pipeline is built, even more lands will be destroyed and our water will be poisoned. We cannot let this happen.
We are responsible for these resources. We are responsible for each other and for our ancestors, as we have been since the beginning of time.
We will protect the sacred grounds and the water. And we will protect our sovereign rights, so that those of all Tribal nations are never ignored again.http://thehill.com/blogs/congress-blog/energy-environment/294548-dakota-access-pipeline-must-not-be-built
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Judge Freezes Dakota Access Work Near Missouri River
Sep 6, 2016 | E&E News PM
By Ellen M. Gilmer
Developers of the controversial Dakota Access oil pipeline may continue construction in an area near a Missouri River reservoir believed by an American Indian tribe to hold burial grounds and other artifacts but must halt plans for work closer to the river.
After a heated round of arguments today at the U.S. District Court for the District of Columbia, Judge James Boasberg sidestepped the request from the Standing Rock Sioux Tribe to block construction on a segment of the pipeline near Lake Oahe, but instead brokered an agreement that blocks work along the project corridor 20 miles east of the lake and 2 miles west of the lake.
The work freeze lasts until midnight Friday, when a decision on the broader injunction request will be issued.
The tribe requested the temporary restraining order Sunday after Dakota Access began grading a portion of the pipeline corridor west of Lake Oahe, adjacent to the tribe's North and South Dakota reservation. The tribe had filed a declaration with the court just one day earlier noting a recent discovery of "historically and religiously important stone features and graves" in and around that section of the pipeline's right of way, which is on private land.
Today's agreement allows construction to continue on that site and points west of it. The eastern portion affected by the agreement included an already-complete section and a section where Dakota Access had already voluntarily halted construction to avoid aggravating tensions with protesters.
The Standing Rock Sioux had requested a restraining order that would have prevented further construction activities within 20 miles of the lake until the court makes a broader decision on whether to block construction and freeze permits for the 1,200-mile length of the project while the tribe's lawsuit over Army Corps of Engineers permitting plays out (EnergyWire, Sept. 6).
Former Tribal Historic Preservation Officer Tim Mentz Sr., who now runs a cultural surveying business, described the discovery as "one of the most significant archaeological finds in North Dakota in many years."
Dakota Access says its workers walked the area at issue before the weekend's grading activities and determined that no cultural sites would be disturbed.
"During the walk through and during grading, nothing was found," the company said today in a legal filing. "Bones were not unearthed. Graves were not found. No structure of historical significance was noted."
The Army Corps, meanwhile, did not oppose the restraining order, noting in a brief that "the public interest would be served by preserving peace near Lake Oahe until the Court can render its well-considered opinion on Plaintiff's Motion for Preliminary Injunction."
The pipeline has recently encountered a wall of opposition, with thousands of members of the Standing Rock Sioux and other tribes, plus environmental allies, gathering in North Dakota to rally against the project, calling it "the next Keystone XL" (Greenwire, Sept. 6).
http://www.eenews.net/eenewspm/2016/09/06/stories/1060042393
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Offshore Oil, Gas Production Regulations Updated
Sep 7, 2016 | BNA Daily Environment Report
By Alan Kovski
Stricter safety and environmental protection standards for offshore oil and gas production are required under a final rule an Interior Department agency released Sept. 6.
The regulations from the Bureau of Safety and Environmental Enforcement address production safety systems, subsurface safety devices, safety device testing, production processing systems and other processes for oil and natural gas production on the Outer Continental Shelf.
There have been changes over the years to the regulations governing production, but the new rule is the first extensive update of the regulations since 1988. The rule is built in large part on voluntary industry standards but now makes them mandatory.
The rule includes new requirements for design, maintenance and repair of safety and pollution prevention equipment in what is called a lifecycle approach.
The rule also requires reporting of failures of safety and pollution prevention equipment—a requirement more inclusive of problems than just accidents or spills. The reporting requirement is intended to ensure that design defects are identified and corrected and that equipment is replaced before problems lead to an injury and/or an oil spill.
An operator will be obligated to investigate an equipment failure and perform a failure analysis within 120 days, twice as long as the time specified in the proposed rule.
The rule will be published in the Sept. 7 Federal Register and will take effect Nov. 7. Compliance with some elements will be deferred a year or more from the publication date, a common strategy when extra time is given to allow for equipment replacement cycles or the manufacturing of new equipment.
Costs Calculated
The bureau identified 99 operators on the Outer Continental Shelf—in the federal waters beyond the roughly three-mile limit of state waters.
The agency concluded that the rule will cost the industry $4.7 million a year. About 96 percent of that cost was projected to be for one requirement, the removal and inspection every five years of the fire tube from heaters, with inspection to be conducted by a qualified third party. Heaters are used especially to separate oil from water, gases and sediments.
Industry representatives were reviewing the 376-page final rule (RIN:1014-AA10) Sept. 6 and were not ready to offer much comment on it.
“BSEE has made some positive, constructive changes from the proposal, but we are continuing to review the rule in totality,” a spokesman for the American Petroleum Institute said.
Best Available and Safest Tech
The production rule is less controversial than the well control rule issued by the bureau in April to update regulations for the exploration phase of offshore oil and gas work. Exploration drilling usually is more dangerous than the longer-lasting but relatively routine production from completed wells.
The final production rule contains language revised from the proposed rule to clarify that compliance with existing regulations is presumed to be use of best available and safest technology (BAST) unless the regulator makes a specific determination that other technology is appropriate.
The final rule also says that the bureau may waive the requirement to use BAST on a category of existing operations if the agency determines the use of the best and safest technology for the category would not be practicable.
In addition, the revised language provides a clear path for an operator of an existing facility to request a waiver from use of best and safest technologies if the operator demonstrates, and the agency agrees, that it's impractical.
The final rule also contains revised requirements for automated shut-in of a production safety system when measured pressure varies out of a set range. The final rule allows for a more practical setting of operating pressure range after a system's pressure has stabilized—a change that is supposed to reduce the risk of nuisance shut-ins.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833301&vname=dennotallissues&fn=96833301&jd=96833301
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(ACC Mentioned) EPA Sends Vapor Intrusion Rule To OMB For Review
Sep 6, 2016 | Inside EPA
EPA has sent to the White House Office of Management & Budget (OMB) for review its final rule for adding vapor or water intrusion as a contaminant pathway for placing a site on the Superfund National Priorities List (NPL), with the agency looking to issue a final rule by the end of the year.
OMB received the final rule, known as the Addition of Subsurface Component to the Hazard Ranking System (HRS), for review Sept. 2. EPA on its regulatory tracker website says it plans to issue a final rule in December.
But the proposed rule, released in February, drew a mix of comments, with industry parties and the Defense Department (DOD) voicing objections while some states and advocates endorsed it.
Vapor intrusion, which has garnered increasing attention from regulators in recent years, occurs when vapors rise from contamination below ground into buildings through dirt floors, utility line openings or other pathways. Groundwater intrusion, such as flooded basements due to high groundwater elevations, also can occur. EPA terms both as "subsurface intrusion" (SsI). EPA generally did not account for such exposure pathways when it crafted its waste cleanup programs in the 1980s and 1990s, but subsequent research showed potential risks.
EPA now is proposing to add SsI as a component to the HRS' soil exposure pathway, currently one of four scoring pathways under the HRS used to determine which contaminated sites are eligible for placement on the NPL.
EPA has identified 1,073 sites that may possibly qualify for the NPL due to suspected SsI intrusion, but has also said the revision to the HRS is not expected to increase the number of sites added to the NPL. Rather, EPA believes its site assessment budget will remain flat, and therefore the agency expects to realign and reprioritize its site assessment funds to address sites with SsI, it says.
During the comment period earlier this year, industry groups and DOD were critical of the proposed rule, with DOD arguing the agency should delay the rule's issuance until EPA releases guidance for the rule's implementation, and industry parties opposing the rule, calling it unnecessary and without a rationale. The American Chemistry Council in its comments said the agency fails to show evidence supporting its contention that any potential risks posed by SsI at eligible sites cannot be addressed through existing federal or state programs.
States vary in their position on the proposed rule, with Texas critical but the Association of State & Territorial Solid Waste Management Officials indicating in comments that states had a number of "positive reviews" on it. Some advocate groups also expressed support for the rule.
http://insideepa.com/news-briefs/epa-sends-vapor-intrusion-rule-omb-review
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Paris Climate Deal May Enter Into Force in 2017, HSBC Says
Sep 7, 2016 | BNA Daily Environment Report
By Jessica Shankleman
The accession on Sept. 3 by China and the U.S. to the Paris climate agreement may mean the deal comes into effect by early next year, according to HSBC Holdings Plc.
“Given the country support on timeframes and continued climate diplomacy, we think the threshold will be reached in 2016 or early 2017,” HSBC wrote in a note to clients on Sept. 5. Just 29 more parties to the agreement are needed to activate the deal, the authors wrote.
At least 55 parties, covering at least 55 percent of global greenhouse gas emissions are needed to bring the agreement into force. The pact will be enacted 30 days after those countries have signed up.
Since December, 26 out of 195 nations have ratified the Paris Agreement, which aims to curb temperature increases. Another 25 countries, including Japan and Brazil, have said they would ratify participation by the end of this year, according HSBC. The European Union and Russia are among 20 countries that said they would soon endorse the deal. Another 98 haven't yet committed, according to the note.
U.S. President Barack Obama and Chinese President Xi Jinping formally joined the Paris climate agreement on Sept. 3, bringing the world's two biggest carbon emitters on board the deal ahead of a G-20 meeting.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833262&vname=dennotallissues&fn=96833262&jd=96833262
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Climate Probe Opponents Increasingly Turn to Litigation
Sep 7, 2016 | BNA Daily Environment Report
By Rachel Leven
Opponents of a climate change probe brought by 17 attorneys general are increasingly fighting back in courts, including in a lawsuit filed by the Competitive Enterprise Institute against the New York attorney general.
Groups such as the Energy & Environment Legal Institute hope the lawsuits will reveal the attorneys general's political motivations for investigating whether fossil fuel companies such as Exxon Mobil Corp. deceived investors about the impact climate change will have on its business.
Opponents of the probe argue the investigation, which comes after several attorneys general and environmental groups launched the so-called Green 20 coalition in March, is an assault on the First Amendment rights of those who don't agree with the scientific consensus about anthropogenic climate change.
“Nothing is ever settled in science and there are legitimate reasons that the discussions should continue,” David Schnare, general counsel for the Energy & Environment Legal Institute, told Bloomberg BNA.
Latest Lawsuit Targets Attorney General
The Competitive Enterprise Institute, a free market advocacy group, on Aug. 31 sued New York Attorney General Eric Schneiderman for his office's alleged failure to release documents related to the probe (Competitive Enter. Inst. v. Attorney Gen. of N.Y., N.Y. Super. Ct., No. 5050/2016, 8/31/16).
Specifically, the institute sought through Freedom of Information Act request filed in May anycommon interest agreement mentioning certain environmentalists, environmental groups or attorneys general for any other U.S. state or territory. The existence of the documents have been publicly reported, it said.
In its Aug. 31 petition filed with the Supreme Court of the State of New York for Albany County, the institute said the attorney general's office inappropriately denied its request. It didn't produce the records and didn't offer appropriate legal exemptions, the institute's petition said.
Eric Soufer, a spokesman for the New York attorney general's office, told Bloomberg BNA in an e-mail that the common interest agreement that the institute wants is already available online.
“This lawsuit is more nonsense from the fossil fuel industry intended to delay, deflect and distract from the potential securities, business and consumer fraud under investigation by multiple state attorneys general,” Soufer said. “This filing has zero impact on our investigation, which is moving full steam ahead.”
Other Lawsuits Pursued
The Competitive Enterprise Institute's lawsuit is only the latest bit of legal pushback from opponents of the attorneys general's efforts. Exxon Mobil, which has been at the heart of the probe, has sued Massachusetts Attorney General Maura Healey to block her subpoena of the company's records while the Energy and Environment Legal Institute has sued Schneiderman's office over alleged records request violations (Exxon Mobil v. Healey, N.D. Tex., No. 16-cv-00469, 6/16/16; Energy & Env't Legal Inst. v. Att'y Gen., N.Y. Super. Ct., No. 101181/2016, 7/25/16).
Schnare told Bloomberg BNA his institute is simply seeking documents that should be available through state freedom of information laws. Schnare said he believes the records requested will show “mechanisms that attorneys general are using for political purposes and a political agenda.”
Ken Kimmell, president of the Union of Concerned Scientists, which has itself been targeted by House Republicans over the climate investigation, said the latest lawsuits could be an attempt to slow down the probes. And if that is the case, Kimmell told Bloomberg BNA these lawsuits aren't having the “intended effect.” The investigations are moving forward, he said.
In another lawsuit, the Competitive Enterprise Institute is urging the District of Columbia Superior Court to sanction Virgin Islands Attorney General Claude Earl Walker for inappropriately subpoenaing the institute's work on climate change. While Walker's office eventually withdrew his subpoena, the institute still says sanctions are appropriate (Virgin Islands v. Exxon Mobil, D.C. Super. Ct., No. 2016-CA-002469, 6/7/16).
“From the get-go though, we thought it was a blatant violation of both our first amendment rights and the rights of our donors,” Sam Kazman, general counsel for the institute, told Bloomberg BNA regarding the subpoena.
Vetting in Congress
But the courts are hardly the only place this issue is being battled. The issue is also being vetted in Congress by the House Science, Space and Technology Committee, the chairman of which has subpoenaed the New York and Massachusetts attorneys general, Kimmell's group and others on this issue.
Some, including New York's Schneiderman, questioned the committee's authority to issue certain subpoenas. The congressional committee will hold a hearing Sept. 14 on that issue.
And while all of these official venues are important, both sides are also battling for support of the public through editorials in newspapers, advertisements and other avenues.
For example, the Competitive Enterprise Institute was part of a full page ad in the New York Times in May that called the attorneys general's probe an “abuse of power” and “an intimidation campaign” by the government against those that have different views on climate change.
Kimmell's July editorial in the New York Times called the congressional subpoena issued to his group “a dangerous precedent.” He told Bloomberg BNA that the Union of Concerned Scientists is working to explain to the public that the attorneys general's investigation isn't about intimidating scientists but identifying and holding accountable wrong-doers.
What's Next
The Energy and Environment Legal Institute may pursue more cases related to the documents requests, Schnare told Bloomberg BNA. Ultimately, his group will write a report off of those records, he said.
And Kimmell said the investigations by the attorneys general are continuing. “Time will tell what they learn from those investigations and what the next steps are from it,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96833297&vname=dennotallissues&fn=96833297&jd=96833297
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