Preview Newsletter
ACC AM 9/23/16
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Senate's Short-Term Budget Extension Includes Funding For TSCA Reform
Sep 22, 2016 | Inside EPA
By David LaRoss
Senate appropriators are floating a short-term continuing resolution (CR) to fund the federal government through Dec. 9 that would give EPA an extra $3 million to implement the Toxic Substances Control Act (TSCA) reform law, while backing Democrats' demands for spending to combat the Zika virus without GOP-backed environmental riders. -
US, Others Call For Rapid Phase-Out Of Heat-Trapping HFCs
Sep 22, 2016 | AP (In The Washington Post)
By Josh Lederman
The United States and other countries are ramping up pressure on world leaders to quickly phase out the use of a chemical contributing to global warming. -
Nations Want to Freeze Planet-Warming Chemicals
Sep 23, 2016 | BNA Daily Environment Report
By Andrea Vittorio
More than 100 nations are calling for an “early freeze date” on production and consumption of factory-made chemicals that can help keep things cool but also warm the planet. -
Downstream Users Want Suppliers To Cooperate; SMEs Need To Get REACH Savvy
Sep 23, 2016 | Chemical Watch
By Vanessa Zainzinger
As they prepare dossiers for the 2018 REACH registration deadline, cosmetics companies are struggling to get the information they need from their suppliers. -
Donald Trump, in Pittsburgh, Pledges to Boost Both Coal and Gas
Sep 22, 2016 | The New York Times
By Coral Davenport
Donald J. Trump on Thursday traveled to Pittsburgh, a city once synonymous with the rich coal seam that runs beneath it and now the capital of natural gas fracking, to promise the impossible: a boom for both coal and gas. -
Trump Energy Plan: Kill Clean Power, Halt New Regulations
Sep 23, 2016 | BNA Daily Environment Report
By Leslie A. Pappas
GOP presidential candidate Donald Trump would kill many of Obama's environmental initiatives, halt new regulations and open federal lands to oil and gas production if elected president, the Republican nominee said Sept. 22. -
Trump's Message Resonating With Energy Industry Voters
Sep 23, 2016 | E&E Daily
By Jenny Mandel and Hannah Northey
Donald Trump yesterday pledged a broad regulatory rollback and new opportunities for natural resource production from federal lands and waters in a talk that echoed themes raised by some industry stakeholders but left others questioning how different a Trump administration might look from a Hillary Clinton administration. -
Drilling Wastewater Caused Texas Earthquakes, According To Space-Based Radar
Sep 22, 2016 | AP (In Fuelfix)
By Seth Borenstein
Scientists used radar from satellites to show that five Texas earthquakes, one reaching magnitude 4.8, were caused by injections of wastewater in drilling for oil and gas. -
No Time To 'Fiddle-Fart' On Reform Package — Murkowski
Sep 23, 2016 | E&E Daily
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) yesterday appealed to energy efficiency advocates to pressure lawmakers on efforts to reconcile House and Senate versions of energy reform legislation, noting that the clock is ticking on the 114th Congress. -
‘Bias, Abuse’ in Gas Line Approvals, 180 Groups Tell Congress
Sep 23, 2016 | BNA Daily Environment Report
By Rebecca Kern
More than 180 organizations want House and Senate committee chairs to look into what they call a “history of bias and abuse” by the Federal Energy Regulatory Commission when it comes to approving natural gas pipelines. -
U.S. Exports Of 'Lifestyle' Building Block Ethane Expected To Grow
Sep 22, 2016 | Natural Gas Intelligence
By Joe Fisher
The United States has been producing and exporting more ethane by pipeline and, beginning earlier this year, by tanker from the East and Gulf coasts. Jim Teague, CEO of Enterprise Products Partners LP's general partner, is bullish on continued export growth as ethane is a key building block for the plastics that make the "lifestyle products" the rest of the world wants. -
Lawmakers, Tribal Leaders Urge Federal Action On Dakota Access
Sep 23, 2016 | E&E Daily
By Cecelia Smith-Schoenwalder
Lawmakers and tribal leaders called on the Obama administration yesterday to once and for all end the construction of the Dakota Access oil pipeline at a forum organized by House Natural Resources Committee Democrats. -
Group Says EPA Rule Will Create 5,400 Jobs A Year
Sep 22, 2016 | E&E News PM
By Hannah Hess
U.S. EPA's rule to limit emissions of methane from new and heavily modified oil and gas operations could create the equivalent of 50,000 jobs over the next decade, a new report said. -
Judge Rejoining Power Plan Case Could Boost EPA
Sep 23, 2016 | BNA Daily Environment Report
By Andrew Childers
Federal appellate Judge Cornelia Pillard, who previously recused herself, will now participate in the Sept. 27 argument over the Environmental Protection Agency's carbon dioxide standards for power plants, adding another last-minute wrinkle to an already unprecedented case (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/22/16). -
Ahead Of D.C. Circuit Arguments In ESPS Suit, Both Sides Express Optimism
Sep 22, 2016 | Inside EPA
By Dawn Reeves and Abby Smith
Opponents and supporters of EPA's landmark rule to curb greenhouse gases (GHGs) from existing power plants are expressing strong optimism that their side will prevail -- just days before marathon oral arguments before the full U.S. Court of Appeals for the District of Columbia Circuit. -
The Seven Questions That Will Determine The Fate Of EPA's Carbon Rules
Sep 23, 2016 | PoliticoPro
By Alex Guillén
When the Clean Power Plan has its day in court Tuesday, lawyers for the states and businesses aiming to overturn the rule will focus on questions they hope EPA can't answer. -
(ACC Mentioend) Report Says MRFs Can Capture More Fexible Packaging For Recycling
Sep 23, 2016 | Recycling Today
By Recycling Today Staff Subscribe
A coalition of industry groups and companies says it has conducted research showing that automated sorting technologies in use today can be used to capture flexible plastic packaging, “potentially creating a new stream of recovered materials while improving the quality of other recycling streams,” they say. -
EPA Releases New Air Pollution Control Cost Guide
Sep 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency revised part of a document used by the agency to estimate the cost of its air pollution rules. -
California Air District Backs Emissions Trading As RACT
Sep 22, 2016 | Inside EPA
A California air district is asking an appellate court to reject environmentalists' arguments that the district cannot rely on emissions trading to satisfy a Clean Air Act requirement to impose reasonably available control technology (RACT) air pollution controls in areas violating national ambient air quality standards (NAAQS). -
Could Trump Withdraw U.S. Support for Paris Climate Pact?
Sep 23, 2016 | BNA Daily Environment Report
By Eric J. Lyman
Republican presidential hopeful Donald Trump said if he becomes president he would “renegotiate” or “cancel” the international Paris Agreement on climate change.
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Senate's Short-Term Budget Extension Includes Funding For TSCA Reform
Sep 22, 2016 | Inside EPA
By David LaRoss
Senate appropriators are floating a short-term continuing resolution (CR) to fund the federal government through Dec. 9 that would give EPA an extra $3 million to implement the Toxic Substances Control Act (TSCA) reform law, while backing Democrats' demands for spending to combat the Zika virus without GOP-backed environmental riders.
The Senate Appropriations Committee released its draft CR Sept. 22. The bill would largely continue currently enacted spending levels, including EPA's $8.14 billion annual budget, though with targeted changes to address time-sensitive issues such as the agency's newly overhauled TSCA program and the Zika crisis.
The $3 million in TSCA funding is designed to offset costs EPA will face to administer various chemical review programs under the recently revised toxics law between now and Dec. 9.
Some of those costs will ultimately be paid in part by fees the agency will charge to industry firms, but EPA is still in the early stages of developing a rule to define and collect the fees, and the TSCA reform law allows Congress to provide temporary funding to bridge that gap.
EPA is currently seeing comments from the chemical sector on how to craft a fee program that will defray costs from certain TSCA programs -- which it is estimating at $110 million annually, though that number is for “discussion purposes” and not the agency's final figure.
However, the TSCA reform law allows EPA to collect up to 25 percent of the costs of implementing several key programs under the chemical safety law, up to a maximum of $25 million, rather than the full amount.
On Zika, the Senate bill provides $1.1 billion to combat the mosquito-borne virus, including funding for pest control such as pesticide spraying. Senate Democrats previously filibustered a Zika spending bill over Planned Parenthood funding restrictions that the short-term CR seems to avoid.
It also excludes provisions to suspend Clean Water Act (CWA) discharge permit mandates for pesticide spraying -- a long-standing GOP goal that the party recently added to its Zika agenda as a way to eliminate barriers to mosquito extermination. However, the White House has argued that lifting the mandate is unnecessary because permit requirements can already be suspended for emergency situations including the Zika outbreak.
Current funding for the federal government expires on Sept. 30, the end of fiscal year 2016, leaving legislators eight days to revise and pass the bill before the federal government would shut down. The draft CR would extend that deadline to Dec. 9, meaning it would be up to the lame-duck Congress to negotiate FY17 spending legislation.
So far, the parties have deadlocked on funding proposals that Democratic legislators and the White House both sayinclude unacceptable budget cuts and policy restrictions for EPA.
The House's FY17 bill, which it passed July 14, would set the agency's budget at $7.98 billion, a $164 million cut. Legislation in the Senate would cut EPA funding down to $8.1 billion, but Democrats have blocked it from reaching the floor, citing both the funding reductions and policy riders they oppose.
Both bills would block EPA's CWA jurisdiction rule, restrict the implementation of greenhouse gas standards for existing power plants known as the Clean Power Plan and prevent the agency from issuing its upcoming financial assurance mandates for the hard-rock mining industry under the Superfund law, among a host of other riders.
http://insideepa.com/daily-news/senates-short-term-budget-extension-includes-funding-tsca-reform
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US, Others Call For Rapid Phase-Out Of Heat-Trapping HFCs
Sep 22, 2016 | AP (In The Washington Post)
By Josh Lederman
WASHINGTON — The United States and other countries are ramping up pressure on world leaders to quickly phase out the use of a chemical contributing to global warming.
The White House says more than 100 countries are calling for an “early freeze date” for hydrofluorocarbons, or HFCs. The freeze date is when nations must cap their use of HFCs, refrigerants that are more potent heat-trapping gases than carbon dioxide.
Secretary of State John Kerry hosted a gathering of the countries Thursday.
At the event at a New York hotel, Kerry said HFCs currently emit as much pollution as 300 coal-fired power plants.
“That is only going to get worse if we don’t act soon,” Kerry said.
The countries are trying to finalize a deal to add the chemical to a global ozone treaty. They’re hoping to adopt the amendment next month in Rwanda.
The White House says philanthropic groups including the Hewlett Foundation and Bill Gates are pledging $53 million to energy efficiency.
Copyright 2016 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
https://www.washingtonpost.com/business/us-others-call-for-rapid-phase-out-of-heat-trapping-hfcs/2016/09/22/96484b14-80d6-11e6-9578-558cc125c7ba_story.html
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Nations Want to Freeze Planet-Warming Chemicals
Sep 23, 2016 | BNA Daily Environment Report
By Andrea Vittorio
More than 100 nations are calling for an “early freeze date” on production and consumption of factory-made chemicals that can help keep things cool but also warm the planet.
Those chemicals are hydrofluorocarbons (HFCs), which are used primarily in air conditioning, refrigeration and foam insulation. A group of donor countries and philanthropists, including billionaires Bill Gates and Tom Steyer, has pledged $80 million in support of efforts to reduce HFCs and improve energy efficiency at the same time.
Chemical producers such as Honeywell, manufacturers of equipment that use HFCs and end users such as Ben & Jerry's ice cream also threw their weight behind an HFC phasedown.
International negotiators are trying to address HFCs by amending the Montreal Protocol, which was established in 1987 to delimit a growing hole in the world's ozone layer. Like the ozone-depleting substances they were designed to replace, most HFCs are potent greenhouse gases.
In October, countries will gather in Rwanda for final negotiations on the amendment. Secretary of State John Kerry said it is “essential” not just that an HFC amendment pass but that it is ambitious.
Phasing down HFCs could avoid up to 0.5 degree Celsius of global warming. Last year in Paris, the world set a goal to keep the rise in global temperatures to 2 degrees Celsius or less before the end of the century.
“So just in this HFC effort, we have the ability to have a profound impact on reaching our goal of the Paris Agreement,” Kerry said in New York.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709711&vname=dennotallissues&fn=97709711&jd=97709711
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Downstream Users Want Suppliers To Cooperate; SMEs Need To Get REACH Savvy
Sep 23, 2016 | Chemical Watch
By Vanessa Zainzinger
As they prepare dossiers for the 2018 REACH registration deadline, cosmetics companies are struggling to get the information they need from their suppliers.
Delegates at a Fleming cosmetics conference in Munich on Wednesday said their REACH dossier preparations are often hampered by a lack of support from their suppliers, who send "vague and generic" responses to information requests.
It is "labour and time-intensive" to chase up the information necessary to progress REACH dossiers, said Garrett Moran from Oriflame.
Echa advised downstream users to be persistent. The agency is expecting up to 70,000 dossiers for the 2018 deadline and has already received 4,000, the agency's Kevin Pollard told the conference, and the deadline will affect more small cosmetics companies than those in 2010 and 2013.
SMEs will face "particular challenges" to achieve compliance in time, he said. Small companies might not have easy access to regulatory advice and could, where dealing with lower volume chemicals, face high data sharing costs.
To help, Echa "has been investing heavily" in making its IT tools, such as Iuclid, more user-friendly, and reducing the need for user manuals.
Colleen Harte from small luxury brand Lucy Annabella Organics said SMEs have to "do the legal legwork" for REACH compliance.
She advised small companies to sign up with industry associations and consider hiring a consultant. But she said this does not replace learning about REACH and other legislation themselves.
"I don't think there are shortcuts. It's a hugely laborious task, but do read all the legal documents you need to understand the laws."
A good way to feel in control over their product is for SMEs to write their own product information files (Pifs), Ms Harte said. This will normally include getting the relevant information from the respective formulators.
https://chemicalwatch.com/49803/cosmetics-firms-highlight-reach-2018-hurdles
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Donald Trump, in Pittsburgh, Pledges to Boost Both Coal and Gas
Sep 22, 2016 | The New York Times
By Coral Davenport
Donald J. Trump on Thursday traveled to Pittsburgh, a city once synonymous with the rich coal seam that runs beneath it and now the capital of natural gas fracking, to promise the impossible: a boom for both coal and gas.
Mr. Trump’s energy promises to those attending a corporate conference contained a fundamentally incompatible concept, as expanding the exploration of natural gas is the surest way to hurt coal production, and vice versa. Since the two fuels compete directly for the same market — the power plants that light American homes — it is effectively impossible to increase production of one without decreasing the other.
But ever the salesman, Mr. Trump gave it a go and promised to restore the region’s old coal economy and pump up its booming new gas economy.
“The shale energy revolution will unleash massive wealth for America,” he told an audience of chief executives from the energy industry. “And we will end the war on coal and the war on miners.”
It is not the first time Mr. Trump has tailored his policies to be all things to all audiences. Last week, he told auditors tallying the cost of his tax plan that he had dropped a $1 trillion tax cut for small businesses while he told the small business lobby he had not. He has promised a foreign policy more focused on American interests than on global entanglements as he promises to widen the war on the Islamic State and take oil from Iraq. His immigration policies have swung wildly depending on his audience.
Energy experts said Mr. Trump’s pledges on gas and coal pandered to his audience while showing a lack of basic knowledge about energy markets.
“There is a fundamental inconsistency between Trump’s promise to ‘bring the coal industry back 100 percent,’ as he says, and any promises to use government policy to grow the market for natural gas,” said Robert N. Stavins, director of the environmental economics program at Harvard.
“The primary cause of the tremendous fall in coal employment is low natural gas prices, due to increased supplies of natural gas from hydraulic fracturing,” Professor Stavins said. “If the Trump administration wanted to help coal, it could ban fracking. But he can’t have it both ways.”
The United States is already on track to become the world’s largest oil and gas producer, largely without specific policies to push new production. Over the last decade, breakthroughs in hydraulic fracturing, known as fracking, led to a boom in production of natural gas, which is now about 20 percent cheaper than coal. That boom, in turn, drove down demand for coal. Last year, natural gas overtook coal as the largest source of the nation’s electricity.
“If you produce more gas in a static demand environment, you’re going to have a fuel fight between gas and coal,” said Kevin Book, an analyst with ClearView Energy Partners, a nonpartisan energy analysis firm.
It is also hard to see how Mr. Trump could use policy levers to expand production of natural gas. Over the last year, the historically high production levels of natural gas production glutted the market. Companies have idled fracking rigs as they wait for supply to tighten and prices to rise. Experts said that in a free market, the government cannot change that.
“No president controls the market. It’s pretty straightforward,” Mr. Book said.
Mr. Trump vowed to do so by ending regulations on fracking. “I think probably no other business has been affected by regulation than your business,” he told the gas executives. “Federal regulations remain a major restriction to shale production.”
That is largely false. The Obama administration has put forth regulations intended to govern the safety of fracking on public lands — a rule which would cover about 100,000 fracking wells, or about 10 percent of all fracking taking place in the United States. The vast majority of fracking occurs on state or private land and is governed by state and local regulations.
Still, in his appeal to both sides of the fossil fuel equation, Mr. Trump is distinguishing himself from Hillary Clinton, his Democratic opponent, who has put forward proposals to continue and increase environmental regulations on both coal and fracking.
In a debate in March, Mrs. Clinton said, “By the time we get through all of my conditions, I do not think there will be many places in America where fracking will continue to take place.”
She has also vowed to uphold President Obama’s climate change policy, the Clean Power Plan. The heart of the rule is a set of aggressive Environmental Protection Agency regulations intended to curb planet-warming carbon pollution, which comes mainly from coal-fired power plants. The rule has been temporarily suspended by a Supreme Court order, but if it is eventually upheld, it would most likely lead to the shutdown of hundreds of coal-fired plants — and an eventual freeze of the nation’s coal markets.
At a town hall event in Ohio in March, Mrs. Clinton said, inartfully but accurately, “We’re going to put a lot of coal miners and coal companies out of business.”
To compensate for that, Mrs. Clinton has proposed a plan to spend $30 billion over 10 years to bring new jobs and industries, such as call centers and software development, to coal country.
But her proposals are disliked in many parts of coal country, where Mr. Trump has put forth a more immediate and crowd-pleasing proposal: “We will scrap the Clean Power Plan,” he pledged in Pittsburgh, as he has done before.
That may please the coal industry, but it could work against natural gas, the fuel of choice for a market moving away from coal. Gas produces just half the carbon pollution of coal.
“Ironically, if Trump really wants to do something as president for natural gas, he should support the Clean Power Plan,” Professor Stavins said. “Yes, it will hurt coal, but it increase demand for natural gas.”
http://www.nytimes.com/2016/09/23/us/politics/donald-trump-fracking.html
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Trump Energy Plan: Kill Clean Power, Halt New Regulations
Sep 23, 2016 | BNA Daily Environment Report
By Leslie A. Pappas
GOP presidential candidate Donald Trump would kill many of Obama's environmental initiatives, halt new regulations and open federal lands to oil and gas production if elected president, the Republican nominee said Sept. 22.
“America is sitting on a treasure trove of untapped energy—some $50 trillion dollars in shale energy, oil reserves and natural gas on federal lands, in addition to hundreds of years of coal energy reserves,” Trump said during a keynote at the Shale Insight conference in Pittsburgh, a summit of natural gas producers. “I am going to lift the restrictions on American energy, and allow this wealth to pour into our communities—including right here in Pennsylvania.”
The speech offered some new specifics on the energy and environmental goals of a Trump administration, with a heavy focus on regulations the candidate would loosen or kill.
Trump said he would scrap the Obama administration's Climate Action Plan and the Clean Power Plan, rescind a moratorium on coal mine leasing, open federal lands for oil and gas production, and free up offshore areas to energy development.
Currently, less than 10 percent of federal lands are leased for oil and gas development and energy development is off-limits on 90 percent of the country's offshore territory, the candidate said.
Lifting the restrictions on energy would add 500,000 new jobs and increase the gross national product by more than $100 billion each year, Trump said, citing studies from the Institute for Energy Research, a nonprofit research organization focused on “government regulation of global energy markets” according to its website.
End ‘War on Coal.’
Calling for an “America first energy plan,” Trump highlighted his plans to revive the coal sector in the heart of the battleground state of Pennsylvania, where miners have been laid off amid an industry downturn.
In addition to rescinding the “horrible” moratorium on new leasing of federal coal reserves, Trump said he would eliminate “the excessive Interior Department stream rule,” and conduct “a top-down review of all anti-coal regulations issued by the Obama administration.”
“We will end the war on coal and the war on our miners,” he said.
Permits a ‘Disaster.’
Trump also promised to “streamline the permitting process for all energy infrastructure projects.”
Right now, billions of dollars in projects are tied up in “regulatory limbo,” he said.
“The permitting process in your industry is a disaster. It's a disaster,” Trump told the audience of mostly shale, oil and gas developers, going off prepared remarks. “We're going to take care of that.”
‘Massively’ Cut Regulations
He also vowed “the elimination of all unnecessary regulations, and a temporary moratorium on new regulations not compelled by Congress or public safety,” adding that “over-regulation” is costing the economy $2 trillion per year.
“Probably no other business has been more affected than your business by over-regulation,” Trump said.
“We're going to be cutting massively regulations,” Trump said. “We need regulations for safety and environment, but regulations are becoming a major industry right now, and we're going to make it a much smaller industry—make it a minor industry.”
Most business people are more excited about his promises to cut regulations than his plans to cut taxes, he said.
Kill Water Rule, Refocus EPA
Trump also said he would eliminate the new waters of the U.S. rule, which was promulgated in June 2015 but has been stayed by a federal appeals court pending nearly two dozen challenges.
Trump said he would refocus the U.S. Environmental Protection Agency “on its co Leslie A. Pappas
Sept. 22 — GOP presidential candidate Donald Trump would kill many of Obama's environmental initiatives, halt new regulations and open federal lands to oil and gas production if elected president, the Republican nominee said Sept. 22.
“America is sitting on a treasure trove of untapped energy—some $50 trillion dollars in shale energy, oil reserves and natural gas on federal lands, in addition to hundreds of years of coal energy reserves,” Trump said during a keynote at the Shale Insight conference in Pittsburgh, a summit of natural gas producers. “I am going to lift the restrictions on American energy, and allow this wealth to pour into our communities—including right here in Pennsylvania.”
The speech offered some new specifics on the energy and environmental goals of a Trump administration, with a heavy focus on regulations the candidate would loosen or kill.
Trump said he would scrap the Obama administration's Climate Action Plan and the Clean Power Plan, rescind a moratorium on coal mine leasing, open federal lands for oil and gas production, and free up offshore areas to energy development.
Currently, less than 10 percent of federal lands are leased for oil and gas development and energy development is off-limits on 90 percent of the country's offshore territory, the candidate said.
Lifting the restrictions on energy would add 500,000 new jobs and increase the gross national product by more than $100 billion each year, Trump said, citing studies from the Institute for Energy Research, a nonprofit research organization focused on “government regulation of global energy markets” according to its website.
End ‘War on Coal.’
Calling for an “America first energy plan,” Trump highlighted his plans to revive the coal sector in the heart of the battleground state of Pennsylvania, where miners have been laid off amid an industry downturn.
In addition to rescinding the “horrible” moratorium on new leasing of federal coal reserves, Trump said he would eliminate “the excessive Interior Department stream rule,” and conduct “a top-down review of all anti-coal regulations issued by the Obama administration.”
“We will end the war on coal and the war on our miners,” he said.
Permits a ‘Disaster.’
Trump also promised to “streamline the permitting process for all energy infrastructure projects.”
Right now, billions of dollars in projects are tied up in “regulatory limbo,” he said.
“The permitting process in your industry is a disaster. It's a disaster,” Trump told the audience of mostly shale, oil and gas developers, going off prepared remarks. “We're going to take care of that.”
‘Massively’ Cut Regulations
He also vowed “the elimination of all unnecessary regulations, and a temporary moratorium on new regulations not compelled by Congress or public safety,” adding that “over-regulation” is costing the economy $2 trillion per year.
“Probably no other business has been more affected than your business by over-regulation,” Trump said.
“We're going to be cutting massively regulations,” Trump said. “We need regulations for safety and environment, but regulations are becoming a major industry right now, and we're going to make it a much smaller industry—make it a minor industry.”
Most business people are more excited about his promises to cut regulations than his plans to cut taxes, he said.
Kill Water Rule, Refocus EPA
Trump also said he would eliminate the new waters of the U.S. rule, which was promulgated in June 2015 but has been stayed by a federal appeals court pending nearly two dozen challenges.
Trump said he would refocus the U.S. Environmental Protection Agency “on its core mission of ensuring clean air, and clean, safe drinking water for all Americans.”
A Trump administration's environmental agency would be “guided by true specialists in conservation, not those with radical political agendas that are putting our country behind the eight ball,” he said.
He did not elaborate on what he meant by “true specialists in conservation.”
Environmentalists Respond
Greenpeace USA spokeswoman Cassady Sharp accused Trump of pandering to industry, by “singing the praises of a dangerous energy extraction process that threatens the health and safety of families and communities all over this country and promising to slash critical regulations and the EPA.”
With assistance from Kevin Cirilli and Jennifer A. Dlouhy.
re mission of ensuring clean air, and clean, safe drinking water for all Americans.”
A Trump administration's environmental agency would be “guided by true specialists in conservation, not those with radical political agendas that are putting our country behind the eight ball,” he said.
He did not elaborate on what he meant by “true specialists in conservation.”
Environmentalists Respond
Greenpeace USA spokeswoman Cassady Sharp accused Trump of pandering to industry, by “singing the praises of a dangerous energy extraction process that threatens the health and safety of families and communities all over this country and promising to slash critical regulations and the EPA.”
With assistance from Kevin Cirilli and Jennifer A. Dlouhy.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709703&vname=dennotallissues&fn=97709703&jd=97709703
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Trump's Message Resonating With Energy Industry Voters
Sep 23, 2016 | E&E Daily
By Jenny Mandel and Hannah Northey
Donald Trump yesterday pledged a broad regulatory rollback and new opportunities for natural resource production from federal lands and waters in a talk that echoed themes raised by some industry stakeholders but left others questioning how different a Trump administration might look from a Hillary Clinton administration.
"Our energy policy will make full use of our domestic energy sources, including traditional and renewable energy sources," Trump told an oil and gas industry audience at a conference here yesterday. "That means we will end the war on coal and the war on the miners. I will rescind the coal mining lease moratorium, the excessive Interior Department stream rule, and conduct a top-down review of all anti-coal regulations issued by the Obama administration."
Trump also promised to eliminate the "highly invasive" Waters of the U.S. rule, the Climate Action Plan and the Clean Power Plan, which he said would "increase monthly electric bills by double-digits without any measurable improvement in climate."
Trump said he would do all that while "conserving our wonderful natural resources and beautiful natural habitats."
"My environmental agenda will be guided by true specialists in conservation, not those with radical political agendas," he pledged (Greenwire, Sept. 22).
The speech was well received by the oil and gas operators, equipment manufacturers, environmental services firms and other industry stakeholders gathered to hear Trump's pitch on energy. In panel presentations and trade floor talk throughout the two-day Shale Insight conference, most people have generally talked favorably about the Republican candidate.
An informal "mock election" conducted in sharpie on a white board at a booth of Kallanish Energy, an oil and gas news service, showed Trump viewed more favorably than Clinton. Hash marks representing "positive" factors from a potential Trump presidency outnumbered those in favor of Clinton by a factor of 10.
"[One person said Clinton] said she would ban fracking and that said she killed the coal industry, so would she do the same for gas?" said Caroline MacMillan, director of Kallanish Energy's commodities management team. "On the Trump side of things, people are largely positive, someone said that he won't ... change much and keep it going, but he can't make it super great because of the market factors that will limit how great you can make something."
Some industry voters voiced concern about Trump's comment that he would allow local bans on hydraulic fracturing, MacMillan said, while others said Clinton would likely usher in more market constraints. Still, others said that by constraining coal-fired generation, Clinton could benefit natural gas.
But will those mock choices translate into hard votes come Election Day? Was Trump the clear winner? MacMillan was skeptical.
"I don't think so, just yesterday in [Pittsburgh's] Post-Gazette there was an article saying that actually Clinton was the pro-gas candidate but no one in the industry was willing to admit that," she said. "And no one here is really saying that, either," she added.
Some people attending the event were unequivocal in their support of Trump.
"I think he offers a better business solution for the industry, with his tax proposals, and I think he offers a better solution for the economy," said a participant from Pittsburgh who asked not to be named to avoid damaging business relationships.
Trump's economic platform includes cutting business taxes from 35 percent to 15 percent. "Businesses as a whole can rely more on Republicans. Making American businesses grow is part of his plan," the anonymous Pittsburgh native said.
Another man from Pittsburgh who works for an oil and gas midstream company and similarly asked not to be named, put it bluntly. "He's the right candidate for our industry, hands-down."
A conference attendee who consults on oil and gas projects throughout the Marcellus Shale play and asked to go unnamed said that Trump had caught on to the industry's biggest challenge, a heavy regulatory burden. "Regulation's dragging the entire industry down," the man said, pointing to interlocking state and federal rules that lead to varying regulatory requirements by state and region, and poor communication among state and federal overseers. "We have no control over our project schedules," he said.Below the surface
Even more adamant about the need for anonymity were those who challenged the apparent orthodoxy that oil and gas voters support Trump.
"I despise him. And more importantly, I think he's dangerous," said a man who described himself as an entrepreneur in the energy space. "I think he will cause great damage to the global economy and therefor will sink energy prices. And that his protectionist anti-trade policies will actually harm our energy industry and our trade relationships."
In a low voice, another suggested the two candidates would likely shake out about the same.
"I just don't see anything in terms of his platform that would indicate any change in energy policy from what we have," he said. "Likewise, I don't see anything in Clinton's proposals that would indicate a dramatic change in energy policy, or in her track record. I mean, Clinton has what amounts to a moderate Republican track record, by historical standards."
Setting energy aside, then, he said, "I think the key thing to remember in this election is that you can't be a single-issue voter. The country is complex, the economy is complex, the world is complex, and the president has to be able to navigate all the different concerns that face the country."
Also hesitating was Erica Gillis, who works on oil and gas conferences in the region and says business has been down by more than half since oil prices were high.
"I think he would be good for the industry, so I'm conflicted in my thoughts," Gillis said. Either candidate is likely to preside over an eventual upswing in the industry, she said, but she sees Trump as the candidate who can "greatly expedite" a turnaround.
"The conflict is of course with his accountability, and its's very difficult to know if he's trustworthy. But then again, we don't know if the other candidate is, either. He's back and forth, and flops on issues small and large. And I just have a hard time with that," Gillis said.
Others pointed to the limited choices available. "I just hope that four years from now, we have some better candidates and options," one man said.
Another left the door open to a last-minute change on the ballot. "Of the candidates that are running right now, he's the one with the most realistic perspective of the big picture of how this industry fits in nationally and globally," he said of Trump.Looking for swift action
Ultimately what the industry cares about most is how a candidate's words translate to action, and industry veterans have seen enough of the give and take of politics to know that what they hear is not what they get.
Rob Boulware manages stakeholder relations for Seneca Resources Corp., a subsidiary of National Fuel Gas Co. that drills in the Marcellus Shale, and he pointed to the challenges of carrying through on a resoundingly pro-industry agenda.
"Certainly [Trump's] message today, I think, resonated with an energy crowd. And I think the points that he spoke about were some of the same message points that we talk about as an industry — the need to have the right mix of oversight and regulation, as well as enough latitude to do our business," Boulware said.
But he suggested that if Clinton had spoken to the conference, her reception would likely have been warm as well. "This was an energy room. I think had Hillary Clinton been in the room, we might have heard a different rhetoric than she may say if she's speaking to the Sierra Club. And you know, we as voters all have to take that into consideration."
Boulware pointed to the lack of a formal national energy policy as an indicator of the challenge of governing once a candidate moves into the White House. "The candidates themselves would probably agree, that taking what might be in your heart or even in your plan is sometimes more difficult to deliver on once you get to Washington, D.C.," Boulware said. "A lot of times what one person says while they're campaigning and what they're able to achieve, there's a gap, and that's the reality."
http://www.eenews.net/eedaily/2016/09/23/stories/1060043313
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Drilling Wastewater Caused Texas Earthquakes, According To Space-Based Radar
Sep 22, 2016 | AP (In Fuelfix)
By Seth Borenstein
Scientists used radar from satellites to show that five Texas earthquakes, one reaching magnitude 4.8, were caused by injections of wastewater in drilling for oil and gas.
In 2012 and 2013, earthquakes — five of them considered significant — shook East Texas near Timpson. A team of scientists for the first time were able to track the uplifting ground movements in the earthquake using radar from satellites. A study in the journal Science on Thursday says it confirms that these were not natural, something scientists had previously said was likely using a more traditional analysis.
Study co-author Stanford University William Ellsworth said the technique provides a new way to determine what quakes are man-made.
The team looked at two sets of wells, eastern and western. The eastern wells were shallow and the satellite radar showed that the eastern wells weren’t the culprit, but the high-volume deeper western ones were, Ellsworth said.
Cornell University seismologist Rowena Lohman, who wasn’t part of the study, said it shows that satellite data of ground changes provide good ways to complement what’s measured on the ground.
The quakes have stopped, but Ellsworth said, “the area was shaken pretty thoroughly over a period of about 18 months.”
Ellsworth said the shaking stopped when injection of wastewater dramatically decreased. And that’s a lesson that other areas — such as Kansas and Oklahoma — also have learned.
“Part of the solution is how we manage this problem,” Ellsworth said. “If we get the pressure to go down at depth, the earthquakes stop. “
http://fuelfix.com/blog/2016/09/22/fracking-caused-texas-earthquakes-according-to-space-based-radar/
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No Time To 'Fiddle-Fart' On Reform Package — Murkowski
Sep 23, 2016 | E&E Daily
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) yesterday appealed to energy efficiency advocates to pressure lawmakers on efforts to reconcile House and Senate versions of energy reform legislation, noting that the clock is ticking on the 114th Congress.
"We don't have a lot of time to just kind of fiddle-fart away. We've got work to do," Murkowski said to laughs at an event sponsored by the Alliance to Save Energy, adding, "That's an Alaska colloquialism."
She urged people attending the Great Energy Efficiency Day to sign letters and write op-eds backing efforts to complete the first comprehensive energy bill in almost a decade and to remind lawmakers "that this is an imperative."
"We need to keep our foot on the pedal," said Murkowski, who is chairing a conference committee working on crafting a compromise.
Groups from across the political spectrum have increasingly been weighing in on the competing measures. Last week, business interests urged conferees to retain a provision in the Senate bill,S. 2012, to incorporate energy efficiency and savings into the federal mortgage lending process (E&E Daily, Sept. 15).
Environmentalists have also been vocal about provisions they oppose in both bills. Earlier this week, a coalition of environmentalists submitted an eight-page laundry list of concerns with various sections of both bills. They vowed to "vigorously oppose a final bill if it would do damage to the environment."
House Energy and Commerce Chairman Fred Upton (R-Mich.) this week said members and aides were continuing to meet in an effort to reconcile the bills. "We have a ways to go," he said.
"But it's not to say we can't get it done," he told E&E Daily on Wednesday. "We all know this is not going to be ready for prime time until after the election."
Murkowski yesterday said discussions were ongoing on the broad range of issues. "We're trying to work through all of the issues together," she told reporters after the event, insisting that "we're making headway."
Murkowski said she was confident that conferees would reach agreement on a final package but acknowledged that the divide on some issues may be unbridgeable.
"There's going to be some things — and I don't know what — that we can't reconcile," Murkowski said. "But there's going to be a great deal that we can and will reconcile."
In recent weeks, negotiators on both sides of the Capitol have begun to dig in on two contentious issues they hope can hitch a ride on the energy bill: Western drought and wildfire issues.
Murkowski yesterday conceded that both issues were difficult but said the prospect of having a legislative vehicle to move the high-priority measures was prompting both sides to redouble efforts.
"There's a sense of momentum that's created when there's a view that we can actually advance something into law," she said. "So there's good incentive for our teams to really work through some of these issues."
While some members have talked about using the energy bill as a vehicle for addressing tax issues, Murkowski noted that it's beyond her jurisdiction.
"I can't tell you, because I haven't been involved with those discussions and I don't know where the committee is, so I don't know," she said. "Is it possible? Anything's possible around here."
Earlier this week, Sen. Jim Inhofe (R-Okla.) suggested the energy bill could carry a bipartisan nuclear innovation bill, S. 2795, that advanced through the Environment and Public Works Committee, which he chairs, in May.
Murkowski acknowledged that introducing additional measures into the conference's purview could further complicate negotiations, but wouldn't rule out the prospect.
"I do recognize that there are possibilities," she said.
http://www.eenews.net/eedaily/2016/09/23/stories/1060043296
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‘Bias, Abuse’ in Gas Line Approvals, 180 Groups Tell Congress
Sep 23, 2016 | BNA Daily Environment Report
By Rebecca Kern
More than 180 organizations want House and Senate committee chairs to look into what they call a “history of bias and abuse” by the Federal Energy Regulatory Commission when it comes to approving natural gas pipelines.
The organizations, primarily environmental nonprofit groups across 35 states including local Sierra Club chapters, sent a letter Sept. 21 urging the chairs and ranking members of the House Energy and Commerce Committee and the Senate Committee on Energy and Natural Resources to hold hearings to learn how “communities are being harmed by FERC's implementation of the Natural Gas Act.”
The Natural Gas Act gives FERC the authority to approve the siting and construction of natural gas pipelines in the U.S. The groups asked Congress to overhaul the act to better protect communities from natural gas infrastructure.Urging Members to Oppose Energy Bill
The groups also asked the members to oppose—or at a minimum suspend—further movement of the Energy Policy Modernization Act of 2016 (S. 2012). The bill passed the Senate and is currently under consideration in a conference committee with the House energy bill (H.R. 8).
The groups said the Senate bill includes language to streamline the process for FERC review and approval of natural gas pipelines. They wrote that they want work on the bill to be halted until congressional hearings occur for Congress to learn how the people, states and the environment are being abused by the implementation of the Natural Gas Act, and would be further harmed under a more expedited approval process.
The groups asked for both the House and Senate committees to make it a priority to schedule hearings to learn more about these issues during this Congress.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709717&vname=dennotallissues&fn=97709717&jd=97709717
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U.S. Exports Of 'Lifestyle' Building Block Ethane Expected To Grow
Sep 22, 2016 | Natural Gas Intelligence
By Joe Fisher
The United States has been producing and exporting more ethane by pipeline and, beginning earlier this year, by tanker from the East and Gulf coasts. Jim Teague, CEO of Enterprise Products Partners LP's general partner, is bullish on continued export growth as ethane is a key building block for the plastics that make the "lifestyle products" the rest of the world wants.
The United States had been exporting ethane by pipeline to Canada (see Daily GPI, June 30; Aug. 21, 2015) and more recently by tanker to overseas destinations. The first U.S. ethane export terminal, located in Marcus Hook, PA, about 20 miles southwest of Philadelphia, has an export capacity of 35,000 b/d and began shipping cargos last March (see Daily GPI, March 10). The second U.S. ethane export terminal, opened by Enterprise in Morgan's Point, TX, recently sent its first shipment to Norway (seeDaily GPI, Sept. 1). This 200,000 b/d facility on the Houston Ship Channel is the first ethane terminal in the Gulf Coast region.
Unlike heavier natural gas liquids (NGL) -- such as propane, butanes and natural gasoline -- significant amounts of ethane can be left in the natural gas stream, a situation known as ethane rejection. Currently, the U.S. industry is rejecting about 600,000 b/d of ethane back into the natural gas stream, Teague said Thursday at the 2016 Deloitte Oil & Gas Conference in Houston.
However, by 2020, Enterprise is predicting that there will be a shortage of ethane on the U.S. Gulf Coast. "So what that means is if you're in the Permian or in the Eagle Ford, your margins are going to be really nice and wide," Teague said. For ethane coming from the Eagle Ford or Permian, the trip to the ethylene plants is about 10 cents per gallon. Coming from the Rockies or Marcellus Shale, the cost jumps to 22 cents per gallon, Teague said.
"But those plants and that capacity need that ethane, and if they need that ethane, they'll pay up for it. So they would make a margin...The guys on the Gulf Coast are really going to be happy," Teague said.
During his talk, Teague voiced skepticism about climate change and criticized the attacks that the energy industry has come under.
"Climate Change...It's become somewhat of a religion," he said. "There seems to be no compromise. They think their science is black and white, and I don't. Our business is kind of under assault. It's like, we love our lifestyle, but we hate the commodities that make the lifestyle possible. Bottom line, global gas is going to be a player for my lifetime and particularly natural gas liquids. Simply put, there are markets all over the world that are growing, and they want what we take for granted and they want it now. And there's nothing other than oil and gas that can make that possible.
"Can you imagine a millennial wanting to live without their Yeti cooler? And guess where it comes from. It comes from plastics made out of natural gas liquids."
In the climate change debate, "...nobody mentions natural gas liquids," Teague said. "If you start looking at the products that come out of natural gas liquids, it's pretty obvious why. Because those are lifestyle-type products."
The U.S. Energy Information Administration (EIA) has collected monthly data on domestic natural gas heat content by state since 2013. The heat content of natural gas in states that receive shale gas produced from the Marcellus and Utica formations, such as Ohio, Maryland, Delaware and Pennsylvania, has been consistently reported at or above national average levels.
Ohio, in particular, receives a higher portion of its natural gas from the Marcellus and Utica formations. However, since early 2016, the natural gas heat content in these states has trended downward, indicating that producers have increasingly been extracting ethane, EIA said in a note Friday. The lower heat content has coincided with the start of ethane exports out of Marcus Hook, which sources all of its ethane from the Marcellus and Utica formations.
From 2010 to 2015, the ethane share of total NGL production dropped from 42% to 34%. Although other NGLs have found ready markets close to key shale plays such as the Marcellus and Utica formations, the lack of pipelines and local markets for ethane in these areas has limited ethane recovery.
With more export capability and growth in domestic petrochemical demand, more ethane is expected to be recovered and brought to market, EIA said. The agency's Short-Term Energy Outlook projects NGL production to continue growing, from 3.6 million b/d in May 2016 to 4.0 million b/d in December 2017. Nearly half of the projected total increase in NGL production is ethane. Although an expectation of increasing oil prices and an associated increase in NGL prices contributes to the outlook, a major driver of increased ethane production is growth in ethane demand, both within the United States and internationally.
http://www.naturalgasintel.com/articles/107840-us-exports-of-lifestyle-building-block-ethane-expected-to-grow
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Lawmakers, Tribal Leaders Urge Federal Action On Dakota Access
Sep 23, 2016 | E&E Daily
By Cecelia Smith-Schoenwalder
Lawmakers and tribal leaders called on the Obama administration yesterday to once and for all end the construction of the Dakota Access oil pipeline at a forum organized by House Natural Resources Committee Democrats.
The forum, led by Reps. Raúl Grijalva (D-Ariz.) and Raul Ruiz (D-Calif.), heard tribal witnesses express concern over what they described as President Obama's lack of action. They said the Obama administration's review of the project and permitting is a good step, but they want more than action on just this pipeline.
Ruiz assured the concerned tribal members that once the full environmental impact statement is completed, the president would support their demands. He said three steps needed to be taken before the president can make an informed decision: a full environmental impact statement, meaningful tribal consultation and cancellation of the U.S. Army Corps of Engineer's permit for the project.
"Only then, the president, who I believe will take your heart with him in this decision, can make an informed decision ... to do the right thing," Ruiz said.
Standing Rock Sioux Tribe Chairman Dave Archambault II hammered the administration for the government's lack of consultation with his tribe on the pipeline.
He said this controversy is an opportunity for a policy change and that he does not want government action on just this one pipeline but on broader pipeline policy for the future.
"We have to make sure the change happens with this pipeline," he said.
Archambault said that the tribe was consulted but not in a "meaningful" way and that the environmental impact assessment was just "checking the boxes."
"Sometimes things are legal, but they're just wrong," he said.
Many tribes, politicians and environmental groups have publicly supported the Standing Rock Sioux in its battle to fend off Dakota Access LLC's oil pipeline from running under Lake Oahe. The pipeline could carry as much as 570,000 barrels of crude oil from North Dakota to Illinois each day.
Archambault and Harold Frazier, chairman of the Cheyenne River Sioux Tribe, criticized the government's previous consultations with their tribes. Frazier said the meetings never involve decisionmaking agencies and the relevant information is not presented to tribal members.
"Since the corps has a history of not being fair with us Indians, then Congress needs to turn the Oahe project over to the Department of Interior. Or, better yet, give the project to us tribes to manage," Frazier said to the audience's cheers.
The Standing Rock Sioux Tribe will have an opportunity to defend its emergency request to halt construction on the pipeline during oral arguments on Oct. 5 in the U.S. Court of Appeals for the District of Columbia Circuit (Energywire, Sept. 22).
http://www.eenews.net/eedaily/2016/09/23/stories/1060043300
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Group Says EPA Rule Will Create 5,400 Jobs A Year
Sep 22, 2016 | E&E News PM
By Hannah Hess
U.S. EPA's rule to limit emissions of methane from new and heavily modified oil and gas operations could create the equivalent of 50,000 jobs over the next decade, a new report said.
A study by the BlueGreen Alliance, a group that pressed the Obama administration to regulate the potent greenhouse gas, estimates the standards will create nearly 5,400 direct and indirect jobs every year in a variety of sectors, including manufacturing of the products and technologies needed to reduce leaks.
Another highlight, said the alliance of labor unions and environmentalists, is the potential for decent paychecks. In 2014, for example, the median hourly wage for workers in the methane mitigation industry was $30.88, compared with $19.60 for all U.S. jobs, the report states.
Leaders from the Natural Resources Defense Council, the National Wildlife Federation, the United Steelworkers and the Utility Workers Union of America praised the expected benefits of EPA's rule, which also increases how often companies must check and repair leaks at compressor stations (Greenwire, May 12).
EPA has estimated implementation of the final regulations will cost $530 million per year by 2025, but the agency said those expenses will be offset by savings from averting negative consequences of climate change, to the tune of $690 million a year.
The final rule drew an angry response from industry leaders who argued that, amid low oil and gas prices, they were already investing in their own solutions to plug methane leaks.
Multiple states and several trade groups are challenging the standards in court (Greenwire, Aug. 30).
http://www.eenews.net/eenewspm/2016/09/22/stories/1060043284
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Judge Rejoining Power Plan Case Could Boost EPA
Sep 23, 2016 | BNA Daily Environment Report
By Andrew Childers
Federal appellate Judge Cornelia Pillard, who previously recused herself, will now participate in the Sept. 27 argument over the Environmental Protection Agency's carbon dioxide standards for power plants, adding another last-minute wrinkle to an already unprecedented case (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/22/16).
The U.S. Court of Appeals for the District of Columbia Circuit in a Sept. 22 order announced every active judge on the court except Chief Judge Merrick Garland, who has been nominated to the U.S. Supreme Court, will participate in the Clean Power Plan argument. The addition of Pillard, who was appointed by President Barack Obama, tilts the composition of the court further in the EPA's favor with six judges appointed by Democrats and four by Republicans.
With only nine judges previously, “it's easier for the opponents of the rule to knock off the rule by convincing five judges that something's wrong with it. Now they have to get an extra judge and the extra judge is not only Democratically appointed but appointed by Obama,” Jim Rubin, a partner at Dorsey & Whitney LLP in Washington, D.C., who is not involved in the litigation, told Bloomberg BNA.
Pillard's last-minute addition—six days before the D.C. Circuit is set to hear argument—is the latest unusual turn in a lawsuit that has already seen the U.S. Supreme Court step in to stay the Clean Power Plan even before the appellate court could hear argument, and the D.C. Circuit's subsequent decision to bypass the usual three-judge panel in favor of a review by the entire court.
“The folks prepping for this argument would be trying to prepare for questions from every judge,” Rubin said. “Now they have to run back around to figure out what Pillard has said.”
With the addition of Pillard, four of the judges hearing the argument will be Obama appointees.
“It has been somewhat of a transitional period where you're looking at some new judges in the last six, seven years and it may be that clearly a sufficient number of the court—at least the majority—thinks it's time to lay down some clear principles and get this case right, as right as a court of appeals can get it,” Donald Falk, a partner at Mayer Brown LLP in Palo Alto, Calif., told Bloomberg BNA.
‘Cruel and Unusual Punishment for All Concerned.’
When 10 judges from the D.C. Circuit hear the Clean Power Plan oral argument, it will be engaging in a process former Judge Patricia Wald described as “cruel and unusual punishment for all concerned.”
But the D.C. Circuit's decision to take the case right to an en banc court—bypassing the typical three-judge panel—indicates the weight those judges are giving to the EPA's rule. The Clean Power Plan joins an antitrust lawsuit against Microsoft Corp. and battles over the Watergate tapes in the annals of cases taken directly to the full appellate court.
“It is the sort of thing that is very rare and only happens when there is something of real significance to some area of the law. They might as well get everything aired in the full court the first time through,” said Falk, who as a clerk helped senior D.C. Circuit Judge Douglas Ginsburg, who is not participating in the argument, write an analysis of the D.C. Circuit's en banc practices. Falk also represented the Computer & Communications Industry Association and the Software & Information Industry Association in the en banc Microsoft litigation.
With one U.S. Supreme Court seat vacant and the possibility of Democratic and Republican appointees deadlocking at 4–4 on the high court, observers said the D.C. Circuit's decision to hear the Clean Power Plan challenges before the full court will give additional weight to its eventual ruling.
“What strikes me about it is, given the circumstances of the Supreme Court now, this quite possibly could be the final decision,” Michael Giles, a political science professor at Emory College who has written on how appellate courts use en banc reviews to set agendas, told Bloomberg BNA.
The EPA's Clean Power Plan (RIN:2060-AR33), which sets carbon dioxide emissions limits on the power sector in each state to be implemented by state regulators, is the centerpiece of Obama's efforts to address climate change domestically, but the Supreme Court has intervened to halt the rule until it can be litigated. It is being challenged by two-dozen states and a host of utilities and industry groups that argue the EPA has exceeded its statutory authority to regulate electricity markets, something reserved for the states themselves.“I'll be interested to see how the court deals with the fact this is an unusual case where you have a lot of state and industry interests on both sides,” William Buzbee, a professor at Georgetown Law who will be moderating a Sept. 28 discussion of the case with arguing attorneys, told Bloomberg BNA.
Judges Weigh Significance
While en banc review is rare, skipping review by the usual three-judge panel is extremely unusual. The full D.C. Circuit previously has taken up immediate review of the Watergate tapes and an antitrust lawsuit brought against Microsoft in 2000. The common feature of all three lawsuits is the court's recognition of their wide-ranging, national importance, observers said.
“Indeed, exceptional importance to the public was probably a prime factor motivating the court to rehear en banc the various cases that established broad principles in fields as diverse as criminal law and procedure, energy, and environmental regulation,” Ginsburg and Falk wrote in their 1991 George Washington Law Review article The Court En Banc: 1981–1990.
The D.C. Circuit, by its own order, took the Microsoft case straight to en banc the day it was docketed, explicitly citing its “exceptional importance” as a factor. Though the D.C. Circuit did not offer any reasoning for its decision in its May 16 order taking the Clean Power Plan before the full court, opponents charge that the EPA's regulation has the potential to reach into every corner of the economy, fundamentally altering how the U.S. generates electricity.
“The thrust of the rule is to give EPA pervasive authority over how states structure their entire energy production,” Boyden Gray of Boyden Gray & Associates, former White House counsel to President George H.W. Bush, told reporters Sept. 22 on a call organized by the Competitive Enterprise Institute, which is challenging the rule.
In addition to the typical procedural arguments against the Clean Power Plan, the court is faced with several broader challenges to the EPA's authority, including whether the agency has overstepped its statutory bounds, whether the rule improperly commandeers state officials to pursue a federal policy and whether the carbon dioxide standards are even permissible under the Clean Air Act.
“I think a very interesting question will be whether the D.C. Circuit thinks it has the ability to question the EPA at all,” Buzbee said.
The EPA issued the Clean Power Plan under Section 111(d) of the Clean Air Act, the very provision the Supreme Court cited in a 2011 decision that held the agency's ability to regulate greenhouse gases under the Clean Air Act displaced common law nuisance claims brought by several states (Am. Elec. Power Co. v. Connecticut, 564 U.S. 410131 S. Ct. 2527, 2011 BL 161239, 72 ERC 1609 (2011)).
“The states and industry interests challenging the Clean Power Plan in their briefs barely addressed what the Supreme Court said in the AEP case. That's a major issue. EPA leads with that in their brief,” Buzbee said.
States and industries opposed to the Clean Power Plan have argued, however, that the EPA lacks the authority to regulate carbon dioxide emissions from power plants under Section 111(d) because those units are already subject to hazardous air pollutant standards under Section 112. When the Clean Air Act was amended in 1990, conflicting amendments to Section 111(d) were both signed into law. The Senate language says the EPA cannot regulate the same pollutants under Section 111(d) as it does under Section 112, while the House language, which is reflected in the U.S. Code, says the agency cannot regulate a facility under Section 111(d) if it is already subject to Section 112 standards.
In a footnote to the American Electric Power decision, Justice Ruth Bader Ginsburg, who wrote the opinion, seemed to endorse the so-called Section 112 exclusion.
The D.C. Circuit has allotted 44 minutes of argument just for that issue, but what role that sort of statutory interpretation will play amid the various challenges to the Clean Power Plan remains to be seen, observers said.
“In an ordinary case how EPA has construed the 111(d) and 112 relationship would be a kind of quintessential setting for an agency to solve an issue of perhaps inartful language with Congress passing two versions,” Buzbee said. “That's one where the issue of deference will be especially important.”
Window Into Judges’ Jockeying
Though observers said the D.C. Circuit's decision to take the Clean Power Plan argument straight to en banc will give the court's ultimate decision more force, Wald, writing in her 1999 advice to appellate lawyers, said a full panel review is actually more likely to exacerbate disagreements among judges.
“The mere fact that an en banc has been commenced usually means that the court is divided and panel members in the majority are already unhappy,” she wrote. “Many more of the judges’ questions in en banc arguments seem to be motivated by the desire to establish rather than explore positions or to defuse the positions of other judges.”
With 10 judges on the dais, Buzbee said one to watch would be Judge Brett Kavanaugh, who was on a prior panel with Judges Thomas Griffith and Karen LeCraft Henderson that heard challenges to the EPA's authority to even propose the Clean Power Plan, finding the lawsuits were premature (Murray Energy Corp. v. EPA, 788 F.3d 330, 2015 BL 180996 (D.C. Cir. 2015)
).“He tends to be very focused on issues of deference and statutory interpretation,” Buzbee said. “That kind of close attention to language and structure is probably the federal government's best friend here, but he's someone who is viewed as politically more conservative.”
Whatever jockeying the judges do during argument, the real horse trading will come when it is time to wrangle 10 judges to hash out an opinion, D.C. Circuit Judge Ginsburg wrote in his review with Falk.
“When a panel is set to hear fourteen cases over the course of a week, the judges know from past experience that they should be able to agree on all but one or two decisions,” Ginsburg wrote. “When the court undertakes to rehear a single case en banc, however, the probability that it will be divided is very high. The prospect is not appealing. And there is the risk that great effort will be expended with little to show for it, because the court may not reach a clear majority position, or the case may become moot before an opinion is issued, or for any of a number of other reasons.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709718&vname=dennotallissues&fn=97709718&jd=97709718
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Ahead Of D.C. Circuit Arguments In ESPS Suit, Both Sides Express Optimism
Sep 22, 2016 | Inside EPA
By Dawn Reeves and Abby Smith
Opponents and supporters of EPA's landmark rule to curb greenhouse gases (GHGs) from existing power plants are expressing strong optimism that their side will prevail -- just days before marathon oral arguments before the full U.S. Court of Appeals for the District of Columbia Circuit.
Opponents plan to argue that any reasonable court will agree that EPA's rule -- known as the existing source performance standards (ESPS) and the Clean Power Plan (CPP) -- overstepped the legal bounds of the Clean Air Act, while proponents intend to counter that the court will agree that EPA reasonably acted within the statute to address one of the country's largest sources of GHGs, a step toward resolving an urgent global problem.
One source who will argue on EPA's behalf says, “Our whole side of the case will emphasize the real urgency of this problem, and the breadth of the legislative remedy that EPA is using. This is the Clean Air Act being used to address the most serious air pollution problem that we've had at least in generations. That kind of gets lost,” the source says.
Potentially bolstering this argument, the Sept. 27 oral arguments in the case, West Virginia, et al. v. EPA, et al., will come as the United Nations Paris Agreement to cut GHGs is nearing key thresholds to enter into force around the globe.
But a source backing challengers to the EPA rule says, “I think the big question in everyone's mind is, really try to look at the Clean Air Act, what Congress intended, what is supposed to happen under [section] 111(d)” -- the section under which EPA developed the rule -- “or say climate is such an important issue we need to read the statute creatively to let EPA do a rule like this. That is the fundamental question.”
The source adds: “If you take away all of the passion about climate change and just look at what the Clean Air Act says and what Congress intended, and how it has been implemented for the last 45 years, it shouldn't even be a close case. It is quite clear EPA went way beyond what 111(d) was intended to allow.”
EPA is “hoping that the judges will agree that climate is such an important issue and this is such an important rule” that they will uphold it, the source says.
The challenger source adds that it will be important to see whether the judges are inclined to agree with EPA that the “best system of emission reduction,” (BSER) is broad, as defined in the rule as including emission reductionmeasures from the entire electric system, or whether it follows the statutory definition of achieving a continuous emission reduction at a particular source.
But the source defending the rule says the rule is well within air act bounds and is a “reasonable, moderate, carefully considered effort to build upon trends already in the works. . . . We are already two-thirds of the way there based solely on trends already out there, and the rule harnesses the growth of renewable energy and the relative cheapness of natural gas, and so the rhetoric about how extreme [the CPP] is and that it will change us in radical ways is not true.”
'Fence Line'
The ESPS requires the power sector to cut GHGs by 32 percent from 2005 levels by 2030, and sets state-specific GHG goals that can be achieved by using a series of “building blocks,” including heat-rate improvements at existing coal plants, greater dispatch of existing natural gas and greater use of non-emitting resources. It also provides incentives for early renewable and efficiency development, especially in economically disadvantaged areas.
Such building blocks are the components of BSER, a key statutory definition that determines the stringency of the rule's targets.
Opponents claim the rule's approach to BSER is unlawful because the blocks assume steps from throughout the power sector and not just within the “fence line” of regulated power plants.
The legality of the “fence line” issue -- expected to be one of the key questions in the litigation -- will likely be determined by the 10 circuit judges, six appointed by Democratic presidents and four appointed by Republicans. D.C. Circuit Chief Judge Merrick Garland, who has been nominated for the Supreme Court, has recused himself from the case. Judge Nina Pillard had been expected to recuse herself from the arguments, but the court announced Sept. 22that she would participate.
University of California-Los Angeles environmental law professor Ann Carlson said during a Sept. 21 press call that the court “will struggle the most” on the “fence line” issue. “I imagine you would see the Republican-appointed judges fighting hard on” opposing this issue, she said, adding that she predicts a majority of judges will defer to EPA's interpretation of BSER.
While there is a narrow edge for EPA based on the judges' backgrounds, sources on both sides of the case hope for a decisive decision for their sides, while acknowledging a ruling -- which might not be issued until 2017 -- could be fractured and complicated.
A second opponent of the rule declines to predict an outcome but acknowledges that “EPA has a decent chance in this round,” while adding the result of a Supreme Court review is even more difficult to predict, noting that the higher court stayed the ESPS early this year in a 5-4 vote prior to the death of Justice Antonin Scalia.
But the source points to a July D.C. Circuit ruling upholding a Federal Communications Commission's “net neutrality” rule as a sign that the appellate court is broadly granting deference to Obama administration interpretations of ambiguous statutory provisions.
Carlson expects significant conversation during oral argument about the amount of deference the court should give EPA's interpretation of the air act. “There is a long tradition in the court, including by the Supreme Court, in deferring to complex decisions that EPA makes in interpreting the Clean Air Act,” she said.
Citing litigation over EPA's Cross-State Air Pollution Rule, she said the D.C. Circuit “really stressed that these are very hard and complex choices EPA has to make, and they defer to those choices even in the case where statutory provisions could have been read much more narrowly.”
The first source supporting ESPS challengers hopes the court composition will not be a factor in a ruling. “It would be a shame if it comes down [along political lines] because it would be good to have the court say, 'We really do believe in the rule of law, and as much as we might want EPA to do something, it has to live within the bounds Congress set.' This is a clear enough case that hopefully we'll get at least several of the Democratic appointees.”
The source also expects the court to vacate the entire ESPS, rather than remand portions of it, because the key challenges “strike at the core” of the rule.
The EPA supporter also declines to predict an outcome but said, “We are going to seek the vote of every judge, and we're not going to take any judge's vote for granted. We think the statutory arguments and the factual support for the rule are really strong, so we are optimistic that the court will be persuaded as such.”
The source expects the court to be well prepared, and is well aware of the case's importance, since it opted to haveen banc review on its own rather than at the request of any party, and scheduled three-plus hours of arguments.
Threshold Authority
Under the court's oral argument format, it will first hear major statutory challenges, including the “fence line” issue that is also known as “generation shifting.” And it will consider “state authority” concerns.
Then the court will move to a second major issue, which is whether EPA has authority to issue the rule at all, since it already regulates power plant air toxics under section 112 of the air law.
Some of the rule's opponents have interpreted the air act language in section 112 to say that a sector cannot be regulated under both 112 and 111.
“This is a very serious argument,” the first EPA opponent says. “Originally, EPA thought that was just a silly throwaway” but since a three-judge D.C. Circuit panel heard oral argument on this same issue before EPA even finalized the rule, that belies the agency's original contention, the source says.
But EPA says the so-called section 112 exclusion is limited to pollutants, not source categories, and that opponents' interpretation is nonsensical because the agency could simply regulate GHGs first under 111 and then regulate air toxics under 112, and the exclusion would no longer apply.
During the Sept. 21 press call, Richard Revesz of New York University's Institute for Policy Integrity called opponents arguments on this issue “extremely weak” and that the claim “defies logic.” For opponents to make their point, Revesz said they “have to engage in all kinds of strange statutory interpretative gymnastics.”
A second source backing EPA also notes that power companies in earlier litigation specifically asked for 111 rules to control GHGs in lieu of torts. Now that EPA issued a rule under 111, which the source says is intended to fill regulatory gaps, many coal-heavy utilities continue to object. The source expects “a lot of back and forth about that.”
Environmental Defense Fund (EDF) is highlighting that request from a 2011 Supreme Court case, American Electric Power v. Connecticut, where EDF notes attorney Peter Keisler, who will be arguing for coal groups in West Virginia, told the high court that EPA had authority to regulate GHGs from existing power plants. “We believe that EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now,” Keisler said at the time.
Then the court will turn to constitutional claims against the ESPS, including that it unlawfully intrudes into states' power grid jurisdiction and could cause dire scenarios of power shortages.
One source tracking the litigation says if EPA loses these arguments, “You throw the EPA rule out [completely]. Nothing survives. This is not some arcane issue about state emissions budgets.” Then, EPA and its allies' only option to limit power sector GHGs is to “go to Congress and get a [new] statute passed.”
If EPA prevails on the constitutional claims, the source says that “would violate decades of Supreme Court case law on federalism.”
However, the second source backing EPA says the Clean Air Act is “an exercise in cooperative federalism, and EPA's rule is too, and EPA has limited itself to playing the role it is supposed to play” by letting states take the lead in drafting compliance plans while pledging to implement a federal plan if states decline to do so.
While the constitutional claims that EPA is “commandeering” states might be “sexy, I don't think they have a lot of merit. I hate to predict what the court will say or do . . . but [the rule] seems like a straightforward application of EPA's authority to regulate pollution from this industry. I'm hopeful,” the source notes.
Administrative Issues
The final issues the court will hear are notice- and record-based concerns, including claims that the final ESPS is so different from the proposal that it violated notice-and-comment requirements and that EPA basically finalized an entirely new rule. EPA says it made significant changes -- including setting uniform coal and gas rates, and dropping a fourth building block focused on demand-side efficiency improvements -- in response to public comments.
One source calls the notice concerns the “great sleeper issue of the case,” because a win on this issue would have broad ramifications for administrative law, and because the ESPS “violates the express provisions of the Clean Air Act, which requires notice and comment. . . . It could require vacatur of the rule without consideration of the actual merits.”
But the first source opposing EPA doubts the court will even reach that issue. “They wouldn't need to if they decide on the other issues first,” the source notes. “If they get there, it could be pretty important but mostly for other Clean Air Act rules,” since that is the only EPA statute that requires people to have commented on a proposed issue in order to challenge a final version -- a requirement this source says EPA has abused in a “bait-and-switch” manner. --
http://insideepa.com/daily-news/ahead-dc-circuit-arguments-esps-suit-both-sides-express-optimism
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The Seven Questions That Will Determine The Fate Of EPA's Carbon Rules
Sep 23, 2016 | PoliticoPro
By Alex Guillén
When the Clean Power Plan has its day in court Tuesday, lawyers for the states and businesses aiming to overturn the rule will focus on questions they hope EPA can't answer.
Oral arguments before the D.C. Circuit Court of Appeals will cover essentially every claim the challengers throw against EPA's landmark rule to limit carbon emissions from the nation's fleet of power plants, and the judges hearing the case will ultimately have to weigh in on all those issues. While the case is widely expected to be appealed to the Supreme Court, which enjoys the latitude to define the scope of its cases, the winner at the D.C. Circuit will likely enter that proceeding with some advantage. And uncertainty over whether the Senate fills the Supreme Court vacancy before the case can make its way to the high court has some speculating whether the high court will actually take the case.
Story Continued Below
Here’s a look at arguments the D.C. Circuit judges will hear on Tuesday, some of which could kill the Clean Power Plan or force EPA back to the drawing board, while others may simply force changes on the rule's structure or targets. And check POLITICO’s guide to the Clean Power Plan legal challenge for more information on some of these terms and cases.
Can EPA regulate carbon dioxide from power plants under Section 111(d) of the Clean Air Act?
This is the first of two “kill shot” questions, known as the “112 Exclusion” argument. It asks whether EPA can use its preferred approach to regulate carbon emissions, and if the challengers win on this point, the court would be forced to throw out the Clean Power Plan in its entirety and the rest of their arguments essentially would be moot.
The arcane dispute goes back to an unusual legislative glitch when the 1990 Clean Air Act amendments were signed into law. The final text did not resolve a disagreement between the House and Senate over the wording of section 111 of the act, under which the Clean Power Plan was written, and both versions made it into the final law. But challengers argue EPA should be held to the House language, which they say would prohibit the agency from using section 111(d) to regulate power plants' carbon emissions because it already regulates those sources with its Mercury and Air Toxics Standard, written under section 112 of the law.
EPA says the challengers are misreading the statute, and that in any case it should be given deference to interpret the competing provisions. States supporting EPA note that the agency has long regulated certain sources, such as landfills and fertilizer plants, for different pollutants under both sections of the law.
A loss in this category doesn’t necessarily mean EPA can never regulate greenhouse gases. However, a path forward outside of Section 111(d) is unclear. Legal scholars have considered other options — include Section 112, the National Ambient Air Quality Standards program, and a never-before-used section meant to tackle international pollutants — but generally agree that those would prove either prohibitively costly or exceedingly ineffective.
Should EPA get Chevron deference?
The 112 Exclusion argument will give the court another opportunity to revisit the longstanding doctrine known as Chevron deference, in which judges give federal agencies wide latitude to interpret unclear wording in laws.
Applying the doctrine to two competing provisions of the same statute inadvertently both signed into law may be a novel application of Chevron deference, an issue on which there is disagreement among D.C. Circuit judges.
"This is a Chevron case, and when Congress passes conflicting statutes we let the agency decide,” Judge Thomas B. Griffith, a George W. Bush appointee, said during a hearing last year on the proposed version of the Clean Power Plan. He cited a 2014 Supreme Court decision in Scialabba v. Cuellar de Osorio.
On the other hand, Judge Brett Kavanaugh, another Bush appointee on the panel, indicated at the time that he was not necessarily on the same wavelength. Kavanaugh pointed to Chief Justice John Roberts' concurrence in Scialabba, which declared that Chevron deference is "not a license for an agency to repair a statute that does not make sense."
Is the Clean Power Plan unconstitutional?
Laurence Tribe, the liberal legal icon and former Obama mentor now working for coal producer Peabody Energy, has compared EPA's regulation to "burning the Constitution.” Challengers hope the constitutional arguments he helped to hone deliver a "kill shot" for the rule, although it remains to be seen how seriously the judges take them.
EPA says that the Clean Power Plan is a “textbook” case of cooperative federalism that has been used in numerous environmental regulations before, and that the constitutional claims “attempt to put a thumb on the scales of this court’s statutory analysis.” The rule directs states to write their own plans to meet carbon reduction targets but warns EPA will impose a federal plan in any states that do not act.
States and industry groups challenging the rule say it violates the Tenth Amendment because the agency could force coal plants to shut down or direct utilities to use more renewable power, regardless of the states' responsibilities to ensure electric reliability. That would leave "states to bear the brunt of citizen complaints about the increased costs and lost jobs,” the challengers argued.
Can EPA go 'beyond the fence line' to require generation shifting and other measures beyond individual coal plants?
This argument wouldn't kill the Clean Power Plan outright, but it would severely limit EPA’s ability to secure reductions in greenhouse gas emissions.
Most of the rule's anticipated reductions are expected to result from efficiency programs, coal-to-gas switching and the growth of renewable power — things that fall well outside the typical approach to environmental regulation in which power plant operators are required to install pollution controls. But whether EPA can require states to take those types of actions is a question that remained unresolved when the Supreme Court established the agency's authority to regulate greenhouse gases in the 2007 Massachusetts v. EPA decision.
As a potential sign that the court views this issue as the most complex or most important, the first and longest segment of Tuesday’s oral arguments are dedicated to this question. Many legal experts think this is the most treacherous area of the case for EPA, given ambiguities in the Clean Air Act's requirement that EPA set standards based on a “best system of emission reduction."
EPA says its approach is a valid because of the unique characteristics of the electricity sector, in which power suppliers frequently shift among different generation sources, such as coal, nuclear or renewable power plants, to match supply to demand in real time (and sometimes to comply with other environmental regulations).
The challengers argue that EPA's authority to regulate applies only "within the fence line" of actual coal-fired power plants, barring generation shifting to new gas or renewables. But there’s a limit to the gains EPA can make with such constraints. On-site efficiency improvements will net only a small chunk of emissions reductions gained via the Clean Power Plan, and it is difficult if not impossible to retrofit technology like carbon capture onto existing plants.
Are the rule’s requirements 'adequately demonstrated' and 'achievable'?
The Clean Air Act says EPA can only set standards based on technology that has been “adequately demonstrated,” meaning it is reliable, efficient, not “exorbitantly” expensive and shown to be feasible in the real world.
Arguments on this point dovetail with the fence-line argument.
The challengers say the carbon rule falls short of that requirement because EPA is not requiring individual power plants to install pollution controls or switch fuels, as it traditionally has with other environmental rules, and cannot demonstrate the viability of its industry-wide approach of "shifting generation from existing coal units to gas units and new renewable resources.”
EPA points to programs like the Regional Greenhouse Gas Initiative and California’s cap and trade program to prove that such generation-shifting strategies already are working.
Did EPA make too many significant changes between the proposed and final rules?
This is a procedural issue that argues EPA made so many changes in between the proposed and final rules that “no one could have divined the rule EPA finalized — an emission reduction program based on separate, uniform performance rates for coal- and gas-fired units applied nationwide.”
Among the highlighted changes are EPA's decision to drop projected energy efficiency improvements and recalculate state emission targets, and its increased emphasis on potential emissions trading programs. A number of states challenging the rule saw their targets rise sharply between the proposed and final versions of the rule.
EPA replies that those criticisms are both vague and incorrect, and that final rule's changes are “logical outgrowths” of the proposal and subsequent input from the public. “EPA’s modifications to the Rule were foreseeable and the subject of extensive comment, including by Petitioners, so there is no procedural error,” the agency wrote.
Are EPA’s state-specific goals reasonable?
The challengers argue that EPA created an ill-fitting, one-size-fits-all approach for each state when bespoke strategies are called for.
Though there wasn’t time or space to litigate each and every state’s complaint, they cite experiences in six specific states — Arizona, New Jersey, North Carolina, Utah, Wisconsin and Wyoming — to make their case. They say EPA ignored factors such as the 2013 decommissioning of a Wisconsin nuclear plant, the potential for sage grouse habitat to limit renewable energy development in Wyoming and the effect of a 2002 North Carolina law that the state says has already delivered all of the carbon reductions that can “reasonably be achieved.”
EPA said the Wisconsin plant closed too late to be considered because 2012 was the most recent year for which complete data was available when it developed the proposed rule. In Wyoming, EPA said sage-grouse was a nonfactor because the bird is not listed under the Endangered Species Act. And it said the North Carolina law puts the state "in a better position to comply with the rule’s requirements."
https://www.politicopro.com/energy/story/2016/09/the-seven-questions-that-will-determine-the-fate-of-epas-carbon-rules-130833
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(ACC Mentioend) Report Says MRFs Can Capture More Fexible Packaging For Recycling
Sep 23, 2016 | Recycling Today
By Recycling Today Staff Subscribe
A coalition of industry groups and companies says it has conducted research showing that automated sorting technologies in use today can be used to capture flexible plastic packaging, “potentially creating a new stream of recovered materials while improving the quality of other recycling streams,” they say.
The research is being presented in a report from Ann Arbor, Michigan-based Resource Recycling Systems (RRS) titled “Flexible Packaging Sortation at Materials Recovery Facilities.” The industry groups backing the report say it demonstrates that with adequate screening and optical sorting capacity, flexible plastic packaging can be efficiently captured in a single-stream materials recovery facility (MRF).
Common forms of flexible plastic packaging include snack bags, re-sealable food bags, pouches for laundry detergent pods and pet food bags.
“Flexible packaging has many positive attributes—highly efficient, great product protection, and low environmental impact,” says Brad Rodgers, foods packaging research and development director for discovery and sustainability at PepsiCo. “However, recovery has been one of its weak points. This study is shedding light on pathways that can be deployed to improve flexible packaging end-of-life options.”
PepsiCo, along with several other trade groups and corporations, is a member of the Materials Recovery for the Future (MRFF) collaboration effort that is backing the report. The MRFF project brings together brand owners, manufacturers and packaging industry organizations who say they are committed to enhancing recovery solutions for flexible plastic packaging.
“We now know how flexibles flow through a material recovery facility and that the technology already exists for separating flexibles out of the materials streams,” says Larry Baner, senior packaging research scientist of global packaging and design for Nestlé Purina PetCare. “Although there is still a lot of work to be done to define the best way to separate flexibles from single-stream recyclables, this research moves us closer to solutions.”
This first phase of the research program sponsored by MRFF included baseline testing, equipment testing and a series of recovery facility trials to test existing sortation technologies commonly used in MRFs, such as screens and optical scanners. RRS developed the test methodology and conducted the research trials. Subsequent research will focus on further refinements to sorting technology, economic feasibility, assessing end-use markets for the material, and developing a recovery facility demonstration project.
In addition to announcing its initial research findings, MRFF has welcomed three new members of the collaborative: Target, LyondellBasell, and Plum Organics. Other MRFF members include Amcor, The Dow Chemical Company, Nestlé Purina PetCare and Nestlé USA, PepsiCo, The Procter & Gamble Company, SC Johnson and Sealed Air as well as the Association for Postconsumer Plastic Recyclers (APR), the Flexible Packaging Association (FPA), SPI: The Plastics Industry Trade Association (SPI) and the American Chemistry Council.
The 32-page report can be found online here.
http://www.recyclingtoday.com/article/rrs-mrff-flexible-packaging-report-recycling/
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EPA Releases New Air Pollution Control Cost Guide
Sep 23, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency revised part of a document used by the agency to estimate the cost of its air pollution rules.
The Air Pollution Control Cost Manual also serves as a basis for power plants and other industrial facilities to estimate the costs of controls that are required under both of the New Source Review permitting and Regional Haze programs to improve visibility in national parks and other protected areas.
The EPA's Office of Air Quality Planning and Standards Sept. 22 released three updated chapters to the manual. The updated chapters include:
• a methodology for producing cost estimates for pollution controls systems;
• information on condenser control technology, which can be used to both reduce emissions and recover volatile organic compounds; and
• information on incinerators and oxidizers, which can be used to treat organic substances in waste materials.
The agency is seeking public comment on the updated chapters. The information sought by the EPA includes feedback on whether all of the information in those chapters is accurate and up-to-date.Last Update Was in 2003
The cost manual last underwent an update in 2003. Congress, in fiscal year 2014 funding legislation (Pub. L. No 113-76), requested that the EPA begin developing a new version of the manual. Earlier this year, the EPA released updated chapters on estimating the cost of installing selective catalytic reduction and selective non-catalytic reduction controls for emissions of nitrogen oxides, a precursor to the formation of ground-level ozone.
The agency will accept public comment on the updated chapters until Dec. 21. The chapters are available athttps://www.regulations.gov/docket?D=EPA-HQ-OAR-2015-0341.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709709&vname=dennotallissues&fn=97709709&jd=97709709
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California Air District Backs Emissions Trading As RACT
Sep 22, 2016 | Inside EPA
A California air district is asking an appellate court to reject environmentalists' arguments that the district cannot rely on emissions trading to satisfy a Clean Air Act requirement to impose reasonably available control technology (RACT) air pollution controls in areas violating national ambient air quality standards (NAAQS).
In a Sept. 20 amicus brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, the South Coast Air Quality Management District (SCAQMD) says that a win for Sierra Club in challenging the use of air trading as RACT would require the district to “significantly revise” its air pollution control program.
The case SCAQMD v. EPA consolidates a legal challenge that the district filed over EPA's March 6 rule setting out requirements for implementing the 2008 ozone NAAQS of 75 parts per billion (ppb), as well as Sierra Club's suit over the same rule. Both petitioners have different reasons for challenging the rule, and the district filed an amicus brief intervening on EPA's behalf to fight environmentalists' attacks on allowing trading as RACT.
The district's own challenge against EPA objects to the agency's policy of not counting emissions from outside a specific area for the purposes of calculating “reasonable further progress” in state's attainment of the ozone NAAQS, which renders it harder for certain Southern California areas to attain the standard.
However, its amicus brief defends EPA's allowance of emissions trading to qualify as a RACT measure for reducing ozone pollution. “The Sierra Club Petitioners in this case, among other things, seek to challenge EPA’s policy allowing sources to meet RACT-level emissions reductions through emissions trading,” SCAQMD says.
The district fears that environmentalists could use a potential win on the trading issue to then target the district's trading program, known as the Regional Clean Air Incentives Market, or RECLAIM. The district credits the program with a 71 percent reduction in air pollution in the area between 1994 and 2014.
Environmentalists have opposed trading in lieu of site-specific emissions limits, because trading can allow individual emissions sources to increase emissions by buying credits instead of installing controls.
The district warns, “If Sierra Club Petitioners were successful in this tactic, the South Coast District would need to significantly revise its program, very likely practically eliminating the ability for facilities to engage in emissions trading. Such a result would be contrary to the principles of the 1990 Amendments to the Clean Air Act, which specifically encouraged states to include so-called 'marketable permit' economic incentive programs in their state implementation plans,” which are blueprints for how states intend to comply with the NAAQS.
SCAQMD notes that no-one challenged the use of trading as RACT when EPA approved it in 1996, and that to do so now, 20 years afterward, would be a time-barred “impermissible collateral attack. . . . EPA’s interpretation of the RACT provisions of the Clean Air Act is valid on the merits. Nothing in the Clean Air Act specifically prohibits RACT level emissions from being met on an aggregate basis, through emissions trading.”
http://insideepa.com/news-briefs/california-air-district-backs-emissions-trading-ract
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Could Trump Withdraw U.S. Support for Paris Climate Pact?
Sep 23, 2016 | BNA Daily Environment Report
By Eric J. Lyman
Republican presidential hopeful Donald Trump said if he becomes president he would “renegotiate” or “cancel” the international Paris Agreement on climate change.
Assuming Trump is elected Nov. 8, how close he could come to keeping that vow could well be determined in large part before Inauguration Day, which is four months away, expert observers told Bloomberg BNA.
“There are still important variables we have to understand before we can understand the options a possible Trump administration would have,” said Meena Raman, veteran climate campaigner at nonprofit Third World Network. “If the agreement has entered into force, it becomes much harder. If he wants to just ignore it, well, the consequences for that have not yet been decided.”
The U.S. is a signatory to the Paris Agreement, but until the pact becomes international law any signatory can back out. That happens 30 days after at least 55 countries representing at least 55 percent of worldwide emissions deposit their instruments of ratification or acceptance. As of Sept. 22, a total of 60 countries—including the U.S.—representing 47.76 percent of worldwide emissions have taken that step.
Legal Framework
The Paris Agreement was finalized last December in the French capital, laying out a legal framework for countries to ratchet down emissions—the first step worldwide toward keeping global warming to within 2 degrees Celsius (3.6 degrees Fahrenheit) compared to pre-industrial levels. The agreement also calls on industrialized countries to help poor countries adapt to the impacts of climate change.
Trump has called climate change a “hoax” and has said during the presidential primaries that he would renegotiate the deal.
But doing so would require convincing the nearly 200 countries that hammered out the Paris document over the course of six years to come back to the negotiating table because the leader of one country did not like it.
“From someone who was involved [in the negotiations] the first time around, I can only say, “Good luck with that,’ ” Christiana Figueres, the United Nations' top climate official at the time, told Bloomberg BNA earlier this year, when asked about Trump's vow.
Patricia Espinosa, who succeeded Figueres as executive secretary of the UN Framework Convention on Climate Change, said the 55-55 threshold was likely to be reached soon.
“Today we can say with ever more confidence that this historic moment is likely to come very soon, perhaps even by the time governments meet for the next round of climate negotiations in Marrakech, Morocco,” Espinosa said Sept. 21, referring to the follow up to last year's summit in Paris.
International Law
If the 55-55 threshold is reached before Dec. 21, it means the Paris Agreement will be international law by the time the 45th U.S. president is sworn in Jan. 20, 2017. That would mean that a formal withdrawal would fall under the rules of the Paris Agreement's Article 28, which allows any party to the agreement to give notice of its intention to withdraw after at least three years. The withdrawal would become effective one year after that.
“Essentially, the U.S. under a President Trump could not legally withdraw from the Paris Agreement until around the time he would be running for a second term,” Alden Meyer, director of strategy and policy with the Union of Concerned Scientists, said in an interview.
There is speculation that the U.S. could orchestrate a de facto withdrawal by unilaterally pulling out of the 1992 UN Framework Convention on Climate Change. The reason U.S. President Barack Obama did not need congressional approval to sign onto the Paris deal was because it was consistent with existing law created by the 1992 convention, according to some experts.
But legal experts told Bloomberg BNA that was a potential legal gray area that would in any case mean the U.S. would have no seat at the table in future climate negotiations. It also could trigger trade restrictions with any of the nearly 200 countries that remained part of the convention and wished to pass laws requiring imports to be produced in accordance with the terms of Paris Agreement.
“This would be the messiest possibility to be sure,” one veteran UN legal expert said in an interview, asking not to be further identified. “It would require a determined Trump administration working toward an unclear conclusion.”
But what about just ignoring the obligations of the Paris Agreement, whatever the consequences of that may be? Trump also has said, for example, that he would halt U.S. contributions to the Green Climate Fund to help poor countries adapt to climate change.
Rules Determine Consequences
Meanwhile, Ulriikka Aarnio, international climate policy coordinator for Climate Action Network-Europe, noted that the U.S. is already beginning to implement laws to reach its target of reducing emissions by 26 percent to 28 percent between 2005 and 2025. But it's possible that Congress under a Trump administration could reverse those domestic steps and make no effort to live up to its other Paris Agreement obligations.
“That seems like the most likely path,” Aarnio told Bloomberg BNA. “At this point, it's still kind of a philosophical question because the rules for compliance and enforcement are not in place yet.”
A centerpiece of the talks in Marrakech are expected to be a so-called Paris Agreement rule book, which will include a host of measures ranging from compliance issues to reporting and verification. That means the rules that will determine the consequences of a U.S. disregard for the Paris Agreement could be negotiated during Nov. 7–18 climate negotiations that will start before the U.S. election and end after the results are tallied.
“I think if Donald Trump wins on Nov. 8, you will see a lot of scrambling in Morocco to make the consequences of withdrawal as severe as possible,” said the UN legal expert.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97709707&vname=dennotallissues&fn=97709707&jd=97709707
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