Preview Newsletter
ACC PM 9/28/16
-
(ACC Mentioned) US PU Conference Highlights VOC Challenges in Automotive Use
Sep 28, 2016 | ICIS
By Zachary Moore
Industry leaders, and not government regulators, need to develop worldwide standards for volatile organic compounds (VOCs) used in automotive applications, said two organizers of sessions at this week's Polyurethanes Technical Conference. -
Boyle Bill Calls for Federal Standard on PFCs
Sep 28, 2016 | The Intelligencer
By Kyle Bagenstose
U.S. Congressman Brendan Boyle, D-13, of Northeast Philadelphia, this week introduced legislation calling for the creation of an “enforceable, nationwide primary drinking water standard for PFCs,” including perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). -
NGOs Urge Unep to Form Official EDCs List
Sep 28, 2016 | Chemical Watch
By Leigh Stringer
Two NGOs are urging the UN Environment Programme (Unep) to use itsdraft review of lists of chemicals that are recognised as, or suggested to be, endocrine disrupting chemicals, as a basis for an official list. -
Oral Arguments: The Blow by Blow
Sep 28, 2016 | E&E Energywire
By Ellen M. Gilmer
After seven hours of oral arguments over the landmark Clean Power Plan yesterday, U.S. EPA's allies are framing the match as a victory. -
Analysis: EPA Emerges from Court Battle with the Edge
Sep 28, 2016 | E&E Climatewire
By Emily Holden
Yesterday was a good day for U.S. EPA, observers on both sides of a fierce legal struggle over the future of the Obama administration's landmark climate change rule conceded as they emerged from federal appeals court. -
Lawyers, Law Profs Dish in Marathon Court Session's Wake
Sep 28, 2016 | E&E Greenwire
By Amanda Reilly
The decision over the Clean Power Plan's legality could hinge on judges' conclusions about how clearly Congress had to spell out the authority for U.S. EPA to issue the rule. -
Harvard's Lazarus and Freeman Discuss Marathon Day of Arguments, Talk Outcomes and Next Steps for Rule
Sep 28, 2016 | E&E TV
By OnPoint
Following years of debate over U.S. EPA's Clean Power Plan, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments yesterday in the lawsuit challenging the rule. During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law School, discuss the reactions coming from the 10-judge panel on the key issues and arguments in the case. They also explain why they believe the court's final ruling will more than likely favor EPA. -
First U.S. Gas Arrives in U.K. Amid Fierce Fracking Debate
Sep 28, 2016 | E&E Energywire
The first shipment of U.S. shale gas to the United Kingdom arrived in Grangemouth, Scotland, yesterday. -
(ACC Blog) The Chemistry of Disaster Relief
Sep 28, 2016 | American Chemistry Matters
By Judith Nordgren
The Louisiana flood waters have receded and so has the national media coverage of this disaster. The storm pummeled South Louisiana with almost seven trillion gallons of water in a week’s time. -
Inspection Failures Led to 2014 W.Va. Spill — CSB
Sep 28, 2016 | E&E Greenwire
By Gabriel Dunsmith
Federal chemical investigators this morning bashed Freedom Industries for its 2014 spill into the Elk River in West Virginia that led to contamination of drinking water supplies for thousands of residents. -
Lawsuits Take Aim at Chemical Giants Over Poisoned Drinking Water
Sep 28, 2016 | Colorado Springs Independent
By Nat Stein
It was only a matter of time. Several avenues for legal recourse are now available to residents in the Fountain, Security, Widefield area who learned earlier this year that toxic chemicals have been seeping into their drinking water for decades. -
Latest Leak is Colonial's 5th in Ala. This Year
Sep 28, 2016 | E&E Greenwire
In the first five months of 2016, Colonial Pipeline Co. has been responsible for four separate spills of gasoline, fuel oil, diesel, kerosene or jet fuel in the Alabama environment. -
U.S. Rep. Beutler Calls on USDOT to Study Oil-Train Safety Risks
Sep 28, 2016 | Progressive Railroading
U.S. Rep. Jaime Herrera Beutler (R-Wash.) is asking the U.S. Department of Transportation (USDOT) to study whether interspersing crude-oil rail cars with cars carrying nonvolatile commodities on trains would reduce the combustion risk during a derailment. -
Alaska LNG Shipment Makes U.S. History
Sep 28, 2016 | E&E Energywire
By Margaret Kriz Hobson
Early yesterday morning, an Alaska Railroad Corp. (ARRC) freight train made history by hauling two 7,000-gallon International Organisation for Standardisation tanks of liquefied natural gas on a flatcar from the Anchorage rail yard to Fairbanks. -
Hydrogen Economy Gets Real: Renewable Power for Rail Transportation
Sep 28, 2016 | Triple Pundit (in Real Clear Energy)
By Tina Casey
Just a few years ago the sustainable hydrogen economy seemed a long way off, but things are moving along at a rapid clip. In the latest development, French mobility companyAlstom says it is ready to market zero-emissions, hydrogen-powered passenger trains in Europe. -
A Growth-Friendly Climate Change Proposal
Sep 28, 2016 | Wall Street Journal
By Greg Ip
Climate change landed in a Washington, D.C., court this week as Republican governors and business groups sued to block President Barack Obama’s sweeping regulation of greenhouse gas emissions.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
-
(ACC Mentioned) US PU Conference Highlights VOC Challenges in Automotive Use
Sep 28, 2016 | ICIS
By Zachary Moore
Industry leaders, and not government regulators, need to develop worldwide standards for volatile organic compounds (VOCs) used in automotive applications, said two organizers of sessions at this week's Polyurethanes Technical Conference.
Dr Hamdy Khalil and Richard Rossio, committee members and organizers of the conference's automotive sessions, said that although most countries seek to regulate a similar list of chemicals in automotive applications, the allowable percentage of these chemicals can vary significantly between one country and the next.
They discussed some of the challenges facing the automotive industry in an interview with ICIS on Tuesday on the sidelines of the conference in Baltimore, Maryland.
Khalil and Rossio stressed that the industry should be proactive in establishing a globally agreeable set of standards for regulating VOCs. The industry, they added, will be better off if it formulates and applies these standards of its own accord and without the necessity of governments imposing these standards through regulation.
Efforts to properly regulate VOCs in automotive applications are still in their infancy, Khalil and Rossio said, and clinical tests to scientifically establish safety thresholds for various chemicals will be necessary before the industry can agree on a common set of standards.
The conference's automotive sessions had disappeared from the agenda three years ago, but have been revived and now are among the best-attended, Khalil and Rossio said.
They stressed that the Center for the Polyurethane Industry (CPI) and the Polyurethanes Technical Conference, the biggest conference of its kind, have highlighted the importance of the automotive industry for polyurethanes.
Khalil and Rossio said that participation by automotive manufacturers is essential to an industry-wide effort to bring forward more sustainable products.
This year, representatives from several automobile manufacturers were present at the conference and the organizers hope that this number can be raised in future conferences.
In addition, representatives from nine different chemical companies gave presentations about how they plan to minimise VOC emissions from their products. Khalil and Rossio said these sessions were standing room only.
The 59th annual Polyurethanes Technical Conference is hosted by CPI of the American Chemistry Council (ACC). It runs through Wednesday.
http://www.icis.com/resources/news/2016/09/28/10038722/us-pu-conference-highlights-voc-challenges-in-automotive-use/
-
Boyle Bill Calls for Federal Standard on PFCs
Sep 28, 2016 | The Intelligencer
By Kyle Bagenstose
U.S. Congressman Brendan Boyle, D-13, of Northeast Philadelphia, this week introduced legislation calling for the creation of an “enforceable, nationwide primary drinking water standard for PFCs,” including perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).
Those chemicals, currently unregulated, have been found in scores of public drinking supplies across the country. Some of the highest readings nationally were found locally in Warminster, Warrington, and Horsham, and the chemicals have closed 20 public wells and more than 150 private drinking wells in Bucks and Montgomery counties. Boyle's district includes Hatboro and parts of Horsham.
“It is past time we address these contaminants with the seriousness they merit,” Boyle stated in a release announcing the bill. “Whether it's PFCs in Horsham, Pennsylvania, or lead in Flint, Michigan, when it comes to the safety of our drinking water, it's time to get serious.”
Boyle's bill, House Resolution 6125, calls for the U.S. Environmental Protection Agency to adopt a “maximum contaminant level goal” and create a drinking water standard within two years. It is co-sponsored by congressmen Mike Fitzpatrick, R-8, of Middletown, and Pat Meehan, R-7, of Upper Darby.
According to Boyle's office, the bill is part of a “larger package of safe drinking water legislation,” proposed by Rep. Frank Pallone, a Democrat from New Jersey's 6th Congressional District.
Through H.R. 6116, Pallone has proposed 68 pages of amendments to the 1974 Safe Drinking Water Act, including an overhaul of the section regarding unregulated chemicals like PFOA and PFOS.
Presently, the Safe Drinking Water Act requires the EPA to conduct nationwide testing for “no more than 30” unregulated contaminants every five years under a program called the Unregulated Contaminant Monitoring Rule. The EPA is then required to assess the risks posed by the chemicals and accept or reject drinking water standards at a required rate of at least five chemicals every five years.
PFOA and PFOS were two of the chemicals on the EPA's third UCMR testing program, resulting in their discovery in local drinking water systems between 2013 and 2015. In the absence of a standard, the EPA has created an unenforceable "health advisory limit" of 70 parts per trillion for the chemicals in drinking water.
Pallone's bill would increase the requirements on the EPA to consider standards for 10 unregulated contaminants every three years, and also adjust the criteria used to assess their risk. The EPA is also required to study unregulated chemicals under the Toxic Substances Control Act, but faces an uphill battle: There are currently an estimated 80,000 unregulated chemicals in existence.
Both Pallone and Boyle's bills have been referred to the House Committee on Energy and Commerce, on which Pallone is the ranking Democrat.
Also this week, Boyle introduced an amendment to a separate bill, which would have required the U.S. Agency for Toxic Substances and Disease Registry to “conduct a study on the long-term health effects of exposure to PFCs through water contamination around military installations like Willow Grove.”
However, Boyle's office announced Wednesday that the amendment had been removed from the bill it had attempted to ride on: the proposed Water Resources Development Act of 2016 (H.R. 5303).
"Congressman Boyle, Meehan and Fitzpatrick fought to add the amendment," wrote Boyle communications director Sean Tobin in an email. "However, House jurisdictional rules prevented the amendment from moving forward."
The Water Resources Development Act, sponsored by Pennsylvania Congressman Bill Shuster, R-9, was a point of contention in House deliberations this week.
According to Boyle's office, the Senate already passed a version of the bill by a 95-3 vote on Sept. 15. The House began deliberation on the bill this week before Republican leadership presented a revised version and sparked debate, Boyle's office stated. After a compromise, the bill will likely clear the House, but Boyle's office said the congressman will try and reinsert the language when the bill is reconciled between the House and Senate.
"Moving forward, the congressmen will fight to include this provision or an authorization of funding in the Conference Report on the House and Senate WRDA bills where there is broader subject matter jurisdiction," Tobin wrote in an email.
http://www.theintell.com/news/horsham-pfos/boyle-bill-calls-for-federal-standard-on-pfcs/article_17f681c6-858c-11e6-a4e1-9760dfa920bd.html
-
NGOs Urge Unep to Form Official EDCs List
Sep 28, 2016 | Chemical Watch
By Leigh Stringer
Two NGOs are urging the UN Environment Programme (Unep) to use itsdraft review of lists of chemicals that are recognised as, or suggested to be, endocrine disrupting chemicals, as a basis for an official list.
The NGOs, UK's CHEM Trust and the Center for International Environmental Law (Ciel), say that Unep and the World Health Organization (WHO) could manage, update and expand this.
Unep’s draft review assesses 24 existing EDC lists. It suggests 77 substances warrant further scrutiny, based on their inclusion in the following:
the REACH candidate list;
the Danish EPA list of EDCs; and
the Substitute It Now (SIN) list, compiled by the NGO ChemSec.
In a statement prepared for submission to the public consultation on the review, CHEM Trust says the draft will be “useful around the world, from the EU to developing countries and countries with economies in transition”.
Giulia Carlini, project attorney at Ciel, tells Chemical Watch that the draft is a step forward: “Having a clear indication from Unep that these 77 substances are identified as EDCs should be useful to help phasing them out and [to] prioritise research.”
However, the NGOs say the current list misses important EDCs and should be expanded.
“It is important to note that research continues to evolve, particularly given the fact that most chemicals have not been tested for EDC properties,” says CHEM Trust’s statement. “This list should therefore continue to be updated over time.”
For example, it says, Chemsec’s SIN list is “transparent and rigorous” and should be used as a source. But, it adds that the list is limited in scope because it only focuses on chemicals that could be identified as SVHCs within REACH.
The NGO also notes that the Danish list of EDCs is currently being updated, and any changes should be reflected in Unep's review as soon as it becomes available.
Echoing CHEM Trust's comments, Ms Carlini says the lists are “not comprehensive and are inherently limited in scope”.
“REACH, for example, excludes chemicals that are already covered by other sectoral regulations, such as cosmetics, or biocides, so EDC substances falling under these regulations would not be listed in the REACH SVHC list.”
It is therefore important, she says, that Unep’s list is not considered final, to ensure that the large number of yet unidentified EDCs – or those not present on these lists – do not escape international oversight.
Industry view
CHEM Trust says the draft review is a “well-sourced scientific analysis”, and it is, therefore, “disappointed” with the International Council of Chemical Associations (ICCA) call for it to be withdrawn, or significantly revised.
“Unfortunately we are not surprised by this response, as we have found that the main response of much of the chemical industry to the endocrine disruption issue has been to avoid properly acknowledging it. Instead they have too often focused on deferring action, in a way reminiscent of the debate on climate change,” the statement reads.
The ICCA chose not to respond to CHEM Trust’s comments. But the council highlighted its place on both the Saicm Bureau and the Unep Advisory Group on EDCs:
“ICCA supports efforts under the Saicm ‘emerging policy issue’ on endocrine disrupting chemicals to disseminate information and broaden scientific understanding on EDCs, and sees the work plan developed by Unep, the WHO and OECD as an appropriate basis for further work.”
https://chemicalwatch.com/49900/ngos-urge-unep-to-form-official-edcs-list
-
Oral Arguments: The Blow by Blow
Sep 28, 2016 | E&E Energywire
By Ellen M. Gilmer
After seven hours of oral arguments over the landmark Clean Power Plan yesterday, U.S. EPA's allies are framing the match as a victory.
"I was very pleased with the way the arguments went," attorney Sean Donahue said after arguing on behalf of environmental groups. "The court was obviously ... incredibly well-prepared and had dug deeply into the really extensive briefing and record."
Environmental Defense Fund attorney Vickie Patton said the climate rule had a "good day in court," and Natural Resources Defense Council attorney David Doniger noted that "the court was very skeptical of many of the arguments from the opponents."
Outside analysts also put early bets on EPA, cautiously noting that both the court's political makeup — six judges appointed by Democrats, four appointed by Republicans — and the judges' lines of questioning indicate an advantage for the agency.
Still, state and industry petitioners said they were confident in their own odds.
"Today our coalition made very strong arguments about the illegality of the President's Power Plan," West Virginia Attorney General Patrick Morrisey (R) said in a statement. "We finally had our day in court and it didn't disappoint."
Morrisey couched his comment, however, by raising the possibility that the challengers' victory may not necessarily come at the appeals court level but will come eventually.
"All along I've been very clear," he said. "While I don't know exactly when and where, I've always believed that we have the law on our side and will successfully defend coal miners and all the hard working families in our state. We now await the court's decision."
The highly anticipated court date over EPA's carbon-cutting rule for the power sector stretched hours beyond its allotted time yesterday at the U.S. Court of Appeals for the District of Columbia Circuit.
During the proceedings, the 10 judges sparred with attorneys and one another at times, grappling with both high-level questions and technical issues. Arguments about EPA's authority for the rule dominated the time.
EPA Administrator Gina McCarthy joined the packed courtroom for the first half of arguments, while acting air chief Janet McCabe, General Counsel Avi Garbow and others stuck it out for the full day.
Judge Karen LeCraft Henderson joked that the long day required some stamina.
"We've all been through a marathon today," she said. "You have given us all we need and more, perhaps, to work on it."
Moving between fundamental Clean Air Act interpretation and broad federalism issues, the high-stakes proceedings spanned five distinct sections of oral argument. Here's how the issues played out:
Beyond the fence line
Right out of the gate, Republican appointee Judge Thomas Griffith asked West Virginia Solicitor General Elbert Lin to justify a core element of challengers' argument: that the rule is transformative.
Citing projections that the Clean Power Plan only moderately accelerates a downward trend in reliance on coal-fired generation, Griffith said, "That hardly sounds transformative."
The magnitude of the rule's impacts is a key issue in the case. The judges spent much of the first section of arguments weighing whether they should apply a standard from the Supreme Court's Utility Air Regulatory Group v. EPA. In the 2014 case, the court held that EPA could not exercise major, transformative power without a clear statement from Congress on the issue.
Judge Brett Kavanaugh, a Republican appointee, said the UARG scenario "sounds exactly like this case," while Democratic appointee Judge David Tatel countered that the Clean Power Plan doesn't invoke the stricter standard "just because it's big."
Dorsey & Whitney LLP attorney Jim Rubin, who is not part of the case, noted that several of the judges suggested EPA would be entitled to deference on its interpretation of a "clear statement" from Congress.
The arguments featured lengthy discussion of EPA's authority to set requirements that rely on generation-shifting for electricity. Lin and Sidley Austin LLP attorney Peter Keisler raised challengers' long-standing position that EPA cannot use Section 111(d) of the Clean Air Act to regulate "beyond the fence line" of individual power plants.
"What this is doing is very different from what Section 111(d) is all about," Lin said, arguing that the provision is limited to performance standards at facilities, not "restructuring" the grid.
Kavanaugh seemed to agree, calling the provision a "thin statute" to support the climate rule. He likened it to the George W. Bush administration's post-9/11 attempt to detain a suspected enemy combatant, a U.S. citizen, without due process. The Supreme Court ruled in 2004 that U.S. citizens are entitled to due process.
"War is not a blank check," Kavanaugh said. "Global warming is not a blank check, either."
But several judges challenged the argument, noting that the provision requires EPA to consider the "best system of emission reduction," a term some suggested could be reasonably interpreted to include the Clean Power Plan's broad approach.
Department of Justice attorney Eric Hostetler, representing EPA, argued that the approach is based on industry and states' own use of generation-shifting, resulting in a rule "cost-effectively relying on procedures industry already uses."
"Here, EPA looked to what is going on in the real world," he said, noting that the agency reviewed 10 states already using programs to limit carbon dioxide.
Paul Hastings LLP attorney Kevin Poloncarz, representing power companies in support of the rule, then argued that "generation-shifting is business as usual for the power sector."
Environmental attorneys said afterward that Poloncarz's arguments could be particularly persuasive to the court.
"They understood that the big fiction in the other side's case is that the power industry was just stable and happy delivering coal-fired power and nothing was changing until EPA came along with this big bad power plan," Doniger said.
Duplication
Moving on to an ever-complicated statutory issue, the court spent the second section of oral arguments grappling with two versions of a 1990 amendment to the Clean Air Act.
In what some have called a "legislative glitch," the statute includes two versions of the amendment, which prohibits double-regulation of either a source or a pollutant, depending on whom you ask.
"So long as this court gives some effect to both amendments, we win," DOJ attorney Amanda Berman said.
Rubin said the judges seemed receptive to Berman's position.
"It seemed like the courts were searching for some reason to not ignore that amendment," he said.
Kavanaugh found himself in need of a "stiff drink" to make sense of challengers' arguments that the court should consider only the House version. He and Judge Sri Srinivasan, an Obama appointee, went on to spar over Congress' intent when it drafted the two versions.
Judge Nina Pillard, a Democratic appointee, took issue with the result of challengers' position that EPA cannot use Section 111 to regulate a source that has already been regulated under Section 112.
"I'm going to make you go on the right side of the road and you have a speed limit," she said, drawing a hypothetical scenario about why EPA should be able to limit carbon from already-regulated power plants.
Pointing to the Supreme Court's 2011 decision in AEP v. Connecticut, which accepted industry's argument that corporations cannot be sued for greenhouse gas emissions under federal common law because the regulation of greenhouse gases falls under EPA's jurisdiction, Judge Patricia Millett, a Democratic appointee, asked whether challengers were pulling a "bait and switch" by now claiming EPA's style of regulation is impermissible.
Commandeering
Arguments over federalism featured constitutional heavyweights David Rivkin Jr. of BakerHostetler and Harvard University professor Laurence Tribe, whose role in the case has been controversial to environmentalists who are used to seeing him on their side.
According to Rivkin, the Clean Power Plan gives states "no choice but to implement federal policy of generation-shifting." The approach unconstitutionally "commandeers thousands of state workers and hours," he said.
Tatel questioned the characterization, saying it would render unconstitutional the Americans with Disabilities Act because the law relies on action from private industry and states. Tribe countered that the Clean Power Plan would be like Congress failing to pass the ADA and an agency instead forcing states to pass mini-ADAs.
Berman argued that the climate rule is "classic cooperative federalism," levying no penalties or sanctions on states.
Critics maintain that the rule would require extensive action by state regulators to oversee rebalancing of the electric grid, robbing them of their prerogative to decide state energy policy.
"If EPA wins its case, the Clean Power Plan will mark a substantial assertion of federal authority into state planning and control of energy policy," Bracewell industry attorney Scott Segal said in an email. "Consumers, including small businesses, schools, hospitals, and manufacturers, stand to be hurt substantially for very little if any gain."
Notice and achievability
Finally, the court heard two sections of procedural arguments. Crowell & Moring attorney Tom Lorenzen argued that the final version of the rule was so different from the draft that EPA should have opened it back up for comment.
"You can't promulgate a rule that you said you weren't going to do," he told the court.
Petitioners have filed several petitions for EPA to reconsider the rule, but the agency has not yet responded. Under court precedent, the pending nature of the petitions would preclude judicial review.
Lorenzen urged the court to reconsider its position on that issue, arguing that EPA has effectively made public that it will deny the petitions — making it unfair for the challengers to have to wait for the agency to formalize such a decision.
DOJ attorney Norman Rave noted that EPA is still considering the petitions, which rolled in from several parties between August and December of last year.
The final issue of the day was a loaded one: Is the Clean Power Plan actually achievable for states? Wisconsin Solicitor General Misha Tseytlin and Hunton & Williams attorney F. William Brownell argued that EPA's record for the rule points to evidence that several states will be unable to meet the targets.
According to Tseytlin, EPA has not shown that many states can meet the plan's goals within their borders, and it has not shown that sufficient interstate measures would address that problem.
Kavanaugh and Judge Judith Rogers, a Democratic appointee, questioned whether it was "too early in the game" to address that issue and pressed EPA to explain whether the challengers would have future opportunities to seek judicial review if the plan proves unachievable.
DOJ lawyer Brian Lynk noted that EPA would consult with states struggling to comply and that they could petition for a new rule and head to court at that point.
Doniger, the NRDC lawyer, disputed opponents' doubts about achievability but noted that the court need not address the issue in this case.
"The mechanisms are there," he said. "You ask for EPA to change some aspect of the rule, and if they refuse, you have a right to review."
In other words, if EPA wins this case, the legal battles are far from over.
"There's not going to be a shortage of litigation," he said.
http://www.eenews.net/energywire/2016/09/28/stories/1060043538
-
Analysis: EPA Emerges from Court Battle with the Edge
Sep 28, 2016 | E&E Climatewire
By Emily Holden
Yesterday was a good day for U.S. EPA, observers on both sides of a fierce legal struggle over the future of the Obama administration's landmark climate change rule conceded as they emerged from federal appeals court.
Many thought the agency and supporters of the Clean Power Plan had an edge during the nearly seven hours of oral arguments at the U.S. Court of Appeals for the District of Columbia Circuit. It quickly became apparent, though, that the agency's biggest legal hurdle may come from its attempts to make the standards for power plants more flexible, affordable and ambitious.
The most contentious questions focused on a big issue: how the regulation set state-specific carbon levels for power plants.
Rather than looking at what individual coal plants could do to limit greenhouse gas emissions, EPA assumed the industry as a whole could accelerate a trend away from coal and toward cleaner natural gas and renewable power.
Lawyers for the 27 states and an army of mostly coal-reliant companies opposing the rule argued that EPA overstepped its authority under the Clean Air Act, moving into Congress' turf and violating a separation of powers.
Judge Brett Kavanaugh, a George W. Bush appointee, said that while curbing greenhouse gas emissions that humans contribute to climate change is a "laudable" goal, "global warming isn't a blank check" for the president.
"I understand the frustration with Congress," he added. But he said the rule is "fundamentally transforming an industry," in place of legislators.
West Virginia Attorney General Patrick Morrisey, a Republican who is challenging the rule, said after court that the way EPA set goals is key to the case.
"We've always felt that's a very compelling argument, and while we feel that all our arguments were strong, that argument did seem to resonate with a number of people," Morrisey said.
EPA defender and Justice Department attorney Eric Hostetler, on the other hand, argued that the rule sets standard emissions levels for plants and lets states decide how to meet them. He said an aggressive transition is already underway in the power sector, and "this rule just deepens the trends."
"Global warming isn't a blank check."
-Judge Brett Kavanaugh
Eighteen states and a slew of business interests have sided with EPA. Hundreds piled into the courtroom and overflow rooms yesterday, including EPA chief Gina McCarthy, general counsel Avi Garbow, air chief Janet McCabe and air attorney Joe Goffman, as well as White House energy officials Brian Deese and Dan Utech.
Yesterday's arguments played out against a backdrop of intense domestic political drama as well as enormous international pressure to tackle climate change.
Just last week, more than 30 countries at the United Nations ratified the Paris Agreement to keep global average temperatures from rising to catastrophic levels, and it is expected to enter into force this year. The Clean Power Plan is the linchpin of America's contribution to the deal.
Meanwhile, Republican presidential nominee Donald Trump has vowed to "cancel" the Paris deal and eliminate the Clean Power Plan if he is elected.
Yet while the case is under close scrutiny at home and abroad, a D.C. Circuit decision might not come until early next year, and a final call from the Supreme Court could take until 2018. Meanwhile, the rule could stay on hold under a Supreme Court order from February.
Top consulting group eyes 6-4 EPA win
Challengers are bringing a range of charges against the rule, but the core fight is over whether EPA is using its congressionally mandated authority or trying to legislate massive industry changes through regulation.
In the opening minutes yesterday, several judges suggested that in following an existing power-sector shift, the regulation wouldn't be transformative at all.
Judge Sri Srinivasan, an Obama appointee, said the rule would cut coal use in the United States by a small percentage. Coal is already in decline and has been struggling to compete against lower-cost natural gas.
Judge Thomas Griffith, a George W. Bush appointee, similarly noted that EPA is following an existing industry shift, although he also suggested the debate should be playing out in the Senate instead.
Judge David Tatel, a Clinton appointee, said "the only thing that seems transformative here is that it's regulating CO2 for the first time." EPA is also required by an earlier court case, Massachusetts v. EPA, to regulate carbon dioxide emissions, Tatel added.
Consulting group ClearView Energy Partners suggested that if EPA wins, it may be by a partisan 6-4 margin, giving challengers more leverage to get the Supreme Court to look at an appeal. Judges may want EPA to rewrite some parts of the program, but opponents probably didn't convince them to vacate the rule entirely, ClearView said.
That means the rule could be on hold through mid-2018, although "court rulings can be unpredictable," they said.
Debating Clean Air Act amendment intentions
Although EPA brass were at the arguments, the agency didn't issue a statement. But White House spokesman Josh Earnest yesterday morning said the administration is confident that the rule is on strong ground, legally and technically.
"The president is convinced that this is a policy that is important to living up to the commitments that we've made in the context of cutting carbon pollution in a way that will be good for the long-term health of the planet," he said, adding that President Obama is convinced the rule would be good for the economy by creating clean energy jobs.
EPA seemed to excel in other arguments yesterday, including against challenges that the agency is "commandeering" states to force them to take certain actions, that the final rule was so different from the draft rule that it violated the Administrative Procedure Act and that the standards would be impossible for states to achieve.
"The president is convinced that this is a policy that is important to living up to the commitments that we've made in the context of cutting carbon pollution in a way that will be good for the long-term health of the planet."
-White House press secretary Josh Earnest
During one long section of discussion, challenging lawyers argued that EPA cannot regulate carbon emissions from power plants because it has already restricted mercury emissions from power plants under a different section of law. In a head-spinning back-and-forth, judges tried to establish the intent of conflicting amendments to the Clean Air Act that Congress passed in 1990. Depending on interpretation, the amendments might prevent EPA from double-regulating coal plants, opponents have said.
Kyle Danish of Van Ness Feldman LLP said that issue didn't seem to gain much traction.
"It didn't seem like the panel solidified around one particular view that would be helpful for the petitioners on that," he said. But he added that the questions judges ask during oral arguments don't always track with the decisions they render later.
"Sometimes they're trying out arguments that they don't follow but would like to hear a response to," he said.
Challenging lawyers also suggested that a carbon trading system, in which companies that don't reach their goals could purchase allowances from those that do, might never materialize. Kavanaugh noted that several EPA regulations and state efforts have successfully used similar trading programs, although they might not be a "perfect fit." He said that if trading doesn't work out, states could work with EPA to figure out a solution.
http://www.eenews.net/climatewire/2016/09/28/stories/1060043541
-
Lawyers, Law Profs Dish in Marathon Court Session's Wake
Sep 28, 2016 | E&E Greenwire
By Amanda Reilly
The decision over the Clean Power Plan's legality could hinge on judges' conclusions about how clearly Congress had to spell out the authority for U.S. EPA to issue the rule.
Attorneys who argued the case said today that was one of the most significant issues that arose during yesterday's nearly seven hours of oral arguments in the U.S. Court of Appeals for the District of Columbia Circuit.
"What does this rule do? Is it the kind of rule that EPA has the power to issue?" Elbert Lin, solicitor general of West Virginia, who argued the case for state challengers of the rule, asked at a Georgetown University Law Center forum this morning.
The Obama administration's Clean Power Plan requires states to develop and put in place plans to lower carbon dioxide emissions from existing power plants. Overall, the rule aims to slash power plants' CO2 emissions by 32 percent from 2005 levels by 2030.
In a session that drew top Obama administration officials and a who's who of the nation's energy and environmental attorneys and experts, 16 attorneys yesterday argued various challenges to the rule in front of a 10-judge panel. Of the D.C. Circuit's active judges, only Chief Judge Merrick Garland — President Obama's nominee for the vacant Supreme Court seat — did not participate.
"It was like going to the NBA All-Star Game," said William Buzbee, a professor at Georgetown Law. "Really, you had just the best lawyers probably in the country and incredibly well-prepared judges."
Now, the debate over the rule has shifted to deciphering what judges' questions signaled about where they may end up in the decision on the case.
Several conservative judges yesterday questioned whether the Clean Power Plan is transformative enough to warrant a special standard of review reserved for major agency decisions of vast "economic and political significance" (Greenwire, Sept. 27).
Judge Brett Kavanaugh, an appointee of President George W. Bush, also questioned throughout the day whether the rule altered the balance of federal-state relations.
In both instances, the Supreme Court has ruled Congress would have to clearly state that it intended for EPA to issue the rule. That's a tougher standard of review than the more typicalChevron deference, under which courts accord deference to agencies when Congress is ambiguous.
"One of the most significant issues that arose yesterday, the focus of the arguments, was this major questions-clear statement doctrine," New York Assistant Attorney General Morgan Costello said. "All the judges were very prepared and homed in on specific issues that were at the crux of this."
The judges repeatedly raised the 2011 ruling in American Electric Power Co. v. Connecticut, in which the Supreme Court found that citizens couldn't bring common-law suits against companies for greenhouse gas emissions. The high court instead found that the Clean Air Act delegated the responsibility of regulating emissions to EPA, including through Section 111(d) of the law under which EPA based the Clean Power Plan.
Costello said that since the Supreme Court in AEP already found that EPA could regulate carbon dioxide emissions from power plants using the Clean Air Act, the D.C. Circuit judges would have to find some other aspect that requires a clear statement from Congress.
Judge Sri Srinivasan, an appointee of President Obama, yesterday questioned whether the D.C. Circuit had the power to question EPA's authority to use Section 111(d) in the wake of theAEP case.
Judge Patricia Millett, also an Obama appointee, said opponents of the Clean Power Plan may be engaging in "bait and switch" because industry specifically cited the Clean Air Act as a basis for denying states a common-law remedy to greenhouse gas emissions.
Thomas Lorenzen, who argued on behalf of opponents, agreed that the 2011 decision showed EPA has a tool to address emissions from power plants but said there was still a big question as to EPA's authority.
"What this case determines is what the Supreme Court never answered there," said Lorenzen, a partner at Crowell & Moring. "Is that tool a sledgehammer or is it a jeweler's hammer?"
Lin said the 2011 decision was "being exaggerated." Yesterday, he argued that the Clean Power Plan was "transformative" in a legal sense because EPA based the rule on beyond-the-fence-line activities such as shifting to renewable energy generation to meet emissions reduction targets.
"What was interesting is that I think the court got what the rule does, and I think the court understood — you had judges, both Republican and Democratic appointees, saying this was qualitatively different from what's been done before," Lin said.
"I think the question they're going to have to grapple with," he said, "is how transformative is transformative?"
Judges yesterday also grappled with the weight they should give to the changes in energy markets spurred by the rule in determining whether to apply a tougher standard of review. Judge Thomas Griffith, an appointee of President George W. Bush, for example, asked Lin for specifics on the effect of the rule on West Virginia.
Department of Justice attorney Brian Lynk yesterday argued that EPA had been "conservative" in constructing the rule and had set "middle-of-the-road" emissions reduction targets.
Sean Donahue, an attorney at Donahue & Goldberg representing environmental intervenors, said he was happy with how the arguments panned out.
"Does Congress need to enact specific legislation to authorize this, or does the Clean Air Act authorize this?" Donahue said. "That's something that came up repeatedly, and I think our view is that the other side hasn't suggested any sort of practical alternative."
'As near to a unanimous decision'
Until last week, attorneys had expected to argue the case in front of nine judges. But the court last Thursday added a 10th, Judge Cornelia Pillard. The addition of Pillard, an Obama appointee, meant the panel hearing the case comprised six Democratic and four Republican appointees.
With Garland's absence, Pillard's addition also raised the possibility of the court deadlocking in a 5-5 split decision. A tie in an en banc review of a case typically upholds the court's lower ruling, but in the case of the Clean Power Plan, there is no lower ruling because the D.C. Circuit went straight to en banc review.
"We could end up with a very bizarre situation with a 5-5 at the D.C. Circuit, and then a 4-4 at the Supreme Court," Lin said, "all because Judge Garland is disabled from being on either court."
After yesterday's arguments, however, attorneys who argued that case said they doubted the D.C. Circuit would issue a deadlocked decision.
Washington Analysis LLC, an independent research firm, yesterday put the odds in the Obama administration's favor, predicting at least six judges would likely uphold the rule. Millett may be "a key swing vote," the firm said, "given her tough questions for both opponents on CPP and the EPA."
Lorenzen predicted the court would look to issue a unanimous ruling.
"The D.C. Circuit is going to be looking obviously for as near to a unanimous decision as they can," Lorenzen said, "in part because this is an important case, in part because the Supreme Court right now is sort of irretrievably fractured."
http://www.eenews.net/greenwire/2016/09/28/stories/1060043568
-
Sep 28, 2016 | E&E TV
By OnPoint
Following years of debate over U.S. EPA's Clean Power Plan, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments yesterday in the lawsuit challenging the rule. During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law School, discuss the reactions coming from the 10-judge panel on the key issues and arguments in the case. They also explain why they believe the court's final ruling will more than likely favor EPA.
Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today are Richard Lazarus and Jody Freeman, professors at Harvard Law School. Thank you both for joining me.
Jody Freeman: Thank you.
Richard Lazarus: Yeah, thanks a lot.
Monica Trauzzi: So a very exciting day today for anyone in the energy and environment space. The Clean Power Plan oral arguments before the D.C. Circuit were definitely the hottest ticket in town for us nerds. Significant proceeding with 10 judges participating. The arguments ran longer than scheduled. There were many questions from the judges. How significant of a day was this?
Jody Freeman: Well, it was a big day for climate regulation, and it has real implications internationally, not just domestically. So I think there's no way around saying important event, so really fun to be there. But the one really corny reaction I had to this whole thing is that I think it was a great day for law. I thought the legal arguments were really high-quality on both sides. The judging was spot on. People were prepared. It was a treat to be in the courtroom. People were focused on the issues. Not a lot of posturing, not a lot of excess or irrelevant discussion; it was just a really great day of legal argument.
Monica Trauzzi: Hmm. And, Richard, you were impressed by the panel.
Richard Lazarus: Yeah, I was. I mean, the fact is a normal D.C. Circuit case is for 20 minutes with three judges. The case today started at 9:30 in the morning and basically went the whole day. And we had — instead of two advocates, there were about 19 advocates. And you would think, right, that that would get a little tedious after a while? Everyone was into it. It was just high-quality advocacy from both sides. And in clean air cases, sometimes you get there and the judges just — it's so complicated and technical, they get lost. No one was lost. The judges were on. They asked good questions. They enjoyed the argument. They enjoyed each other's company.
Monica Trauzzi: So let's dig into some of the issues. On the statutory issues, how did the challengers do in making the case that the CPP violates Section 111(d) of the Clean Air Act?
Jody Freeman: So look, this is I think the tough issue in the case. The question is, can EPA use the method it used? Can it define the best system of emission reduction the way it did, to think about all the ways you can cut emissions, considering everything you can do on the grid? It's a broad interpretation that allows EPA to set a more stringent standard, because it's saying that sources can do lots of things like invest in renewable energy and switch to natural gas and things of that nature, and the other side's saying, no, all you can do is regulate emissions reductions that a source can implement on site at the source. And that's the essence of it. It's hard because all the statute says is it's best just to move emission reduction for sources. So we all anticipated that would be a tough exchange, that the bench would be hot and have lots of questions, and they did. I actually think EPA did really well. I think they came in and put their best arguments forward, and quite rightly, judges tried to say, "What are the limits to this?" They tried to ask them about whether, in fact, Congress had been clear enough about this to authorize this kind of interpretation. And there we saw Judge Kavanaugh, for example, say, "You know, I really would expect a clearer statement from Congress for matters this important, for regulations this far-reaching." But I'm not sure he had many friends in that position. So I think that was the hardest bit. We can talk about the other issues, too, but for me that was really the linchpin.
Richard Lazarus: Yeah. Yeah, that was the crucial issue, and it's the one which I thought EPA had a very, very strong argument as a matter of policy. And they had a good argument on the law, but it wasn't a slam dunk. So there's gonna be a — a big question going in: How were the judges gonna react to it? And I thought there was a chance we'd walk out of the courtroom today with a pretty clear sense that EPA in fact was gonna lose the case. Instead I came away thinking, "I think they've got a very good shot at winning," and I'm quite cautiously optimistic for EPA, that they're gonna win this case. I did not see — there are basically 10 judges. EPA needs five votes. A tie goes for EPA. I didn't see five votes for the other side. I thought I saw five votes at least for EPA. And the key moment for me at the argument was when Judge Sri Srinivasan spoke. He is a terrific judge. He's sort of a moderate on the court. He used to work for a law firm. He's a really rigorous lawyer. And he basically said that he saw a lot of force, what EPA was saying, their interpretation of the system. It just made intuitive sense to him. And when EPA was arguing, he seemed to be nodding. When _____ _____ favor, he was nodding. He challenged the other side — again, in not an unfriendly way. He said, "Explain to me why my logic is wrong here." And if you've got a judge like Sri Srinivasan on your side, at that point I say I think EPA's got five and maybe more.
Jody Freeman: One more thing about Sri Srinivasan. He did something quite important, at least for purposes of reading the tea leaves. He indicated that he thought that if industry could use all of these different methods to comply with the rule, like switching to natural gas, investing in renewables, all these alternatives, then why wasn't it fair enough for EPA to think about their availability when setting the standard itself? He seemed to believe there should be symmetry there, and that fed right into EPA's position.
Richard Lazarus: Right. And it's a wonderful way that the EPA lawyer tried to explain. But the other side, the challenge _____ _____, they were saying, "It's as though EPA had to assume that someone who golfed only had a putter, and they had to predict their handicap based on they only had a putter in their bag, when in fact they had an incredible driver, and a whole series of clubs in their bag." And it's only fair for EPA to take in kind of what reality is and what industry really does. It was a very effective analogy. The judges all liked it. Even Judge Kavanaugh gave it a big smile for effective advocacy. And then in a very telling moment, when the counsel for interveners, in favor of EPA, for the bunch of utilities, _____ utilities and power systems, stood up and he said, "Actually, what EPA says is the system, that is the system. That is what we do." And you saw a lot of nodding by the judges, and again very significantly, Judge Sri Srinivasan.
Monica Trauzzi: Much has been made over the fact that the final rule did not look at all like the draft rule. How did that discussion play out today?
Jody Freeman: I thought by the time the court got to that — we call it the logical outgrowth issue; it was the final, logical outgrowth of the original — that we both thought they were tired. We talked about that. But, you know, the government's argument was really energetic, even though it was late in the day, and I think they did perk up. They made a good argument. The government really covered all the bases, saying they had noticed. The industry knew what was going on with this rule. We had so many meetings. We had a supplemental notice to them. It's almost impossible to believe — in other words, he was just saying, "It's just not credible that a sophisticated industry like this, with all of the importance of this rule, how long it took, how much outreach we did, how much — that they couldn't have known." And I thought the court seemed quite sympathetic to that.
Richard Lazarus: Yeah. Actually, that was an issue which I was really — I was watching closely, because I thought, you know, there's some sort of superficial good message to the challengers here about how different the two were, so the question was, was the court gonna be sympathetic to that or not? And what happened is when counsel for the petitioner set up, he spent almost all of his time on a threshold question of whether or not this was even before the court right now. And he tried to persuade the court that they should overrule some precedent they have from panel decisions, and the court seemed pretty distracted by that, not fully engaged in the question of whether the proposed and final were some different. And then when the government set up and gave a — I think, as you say, a very forceful argument, for the court to rule against the government on an issue like that, they're gonna challenge them very hard, because they want to make sure they have the government's best arguments. They didn't challenge the government lawyer that much, and in fact Judge Kavanaugh, who you would expect to be the champion of that issue, he actually made it quite clear. He said, "You know, I think when the government does big changes, I think that's a good thing when they make big changes."
Jody Freeman: He said, "You showed you learned something," which is exactly the point of any agency shifting positions is, you know, oh, you showed you're flexible and you listened to comment.
Richard Lazarus: Yeah, so he didn't seem to be someone who would be really aggressive in applying that test, that the proposed can't change so much to the final. He seemed to be sympathetic to the idea that it could change. And if that's the case, he seemed to be not that likely to want to establish precedent which punished the agency from learning from the process.
Monica Trauzzi: Let's talk about your colleague Laurence Tribe. Initially, when we first found out that he would be involved in the proceedings, it was seen as very controversial. How did he do today?
Jody Freeman: Well, he stood up — he was supposed to focus his arguments on a constitutional issue that has to do with commandeering of the question of whether the EPA rule here interferes with the states, it goes too far into the core of power and interferes with sovereignty. He actually didn't stick to that. He did meander somewhat into other issues that had come up over the course of the day. He talked about the threshold question of whether EPA even has the authority to do this in the first place, which we haven't talked about yet, but people are worried about that one. I think today that one was put to rest. The panel seemed to be very sympathetic to the idea that the two conflicting provisions about EPA's authority, this very technical issue, are ambiguous, it's not easy to resolve on its face, and that EPA should have some room to interpret and make sense of that provision. So that's something that professor Tribe went back to and tried to talk more about, but I don't think there was much traction there. I don't think he got much traction when he went back to concern about separation of powers here. So I'm not sure that it landed with the panel, his argument, but of course it's always a delight to see our colleague argue, and I think the panel felt the same way _____ _____
Richard Lazarus: Yeah, that's exactly right. I mean, Larry Tribe is a wonderful friend of ours. He's a terrific colleague, and obviously he's just an outstanding and famous, deservedly so, constitutional law scholar. You could see that on the faces of the judges when he was arguing. They were smiling. They enjoyed hearing him. You know, he's fun to watch. He's a good advocate in the positions he makes. But at the end of the day, as Jody alluded, there wasn't a lot of constitutional law there. As you may remember, when Larry Tribe was brought in, I mean, more than a year ago now, it was all about how the Clean Power Plan was burning the Constitution and how it was unconstitutional for the takings clause, unconstitutional for this and that. Almost all that was gone by the time the case was argued today. I mean, the big arguments, the big — with the statutory law, Tribe was under the court's order given six minutes in the case. All the other big statutory issues were before, and when he got to the constitutional law stuff, no more takings clause. It's all gone. And it was nominally separation of powers, nominally 10th amendment. All it really was was a retread of the arguments from the morning, done in this wonderful style to watch — a terrific advocate, but it was basically just going over what happened in the morning. And as I think Jody said, I didn't feel the traction. I saw the admiration.
Monica Trauzzi: Hmm. All right, so now let's talk about next steps. We await a decision, of course, which may come at the end of this year, early next year. Will the Supreme Court definitely take it up, or are they waiting to see how the panel goes and potentially we might see the court decide to not take it up?
Jody Freeman: Well, there are so many unknowns here. I mean, you cannot make this stuff up. You know, a 10-judge en banc panel that in theory could tie. I don't think any of us think there would be a tie, but the idea that that's possible. The eight justices on the Supreme Court awaiting a ninth — there's so much —
Richard Lazarus: The stay —
Jody Freeman: The stay — I mean —
Richard Lazarus: The last —
Jody Freeman: The death of Scalia within a week of the stay.
Richard Lazarus: The last vote Justice Scalia had on the court was the stay, which is just phenomenal, the last thing he did.
Jody Freeman: But given all that, even — we still have all this uncertainty. I think just to answer your question, I think everybody thinks the Supreme Court's gonna take this up. And I'm interested to see if you think that's for sure, but I think it's very likely. And the question is, you know, how long does it take for this to get decided? A lot of issues in this case — I mean, it's two very big ones, but then as we saw today, many more other procedural ones, so it could take some time. And then we have to wait to see what will happen with the election and whether we'll see a ninth justice anytime soon, because that'll still take some time. So if I were a betting woman, I would bet we're gonna have the Supreme Court weigh in on this case.
Richard Lazarus: Yeah, it's — you know, the odds are very heavy that this will be a Supreme Court case. I mean, it could not be. I mean, actually one of the last en banc Clean Air Act cases I remember was in the late 1980s, and the court actually wasn't even asked to hear it. That's because the court decided 11 to zero.
Monica Trauzzi: Right.
Richard Lazarus: It was all on one side. So if you've got a lopsided vote here, I don't think the court would take it. That seems unlikely. There will be a split here. The interesting thing is the timing, because if EPA were to lose this case, they could lose it relatively quickly. In other words, all EPA has to do is lose it on one big issue and the court doesn't have to address all the other issues. So they could — but I think the fastest that would happen, 'cause there'd still be a loud dissent — the fastest would be December, and more likely January. If it's December or January, that's too late for the Supreme Court to hear it 'cause they have to petition this year. They'd have to hear it next fall. Now if EPA were to win the case, the court has to address all the issues, and that could take a lot longer. That could take four, five, six, seven, eight months if they —
Jody Freeman: Which gives you time to have a ninth justice.
Richard Lazarus: Which gives you more — but either way, either way this case will not be heard by the United States Supreme Court, I think it very likely, until next fall. It's not gonna happen this spring because they have to write this opinion, they decide the case. The lot — even the quickest they could do it would be December or January. You then have time to petition. The court's cutoff time is mid-January. The court has to accept a case by mid-January to basically schedule for argument this term. Again, there are always exceptions. People could say this is an emergency, it has to be done sooner. It happens like in a case like Bush v. Gore. I don't think this is down that track.
Jody Freeman: But two other things arise here. One is, first of all, that there will likely be some effort to have the stay lifted if the en banc panel rules in favor of EPA while we wait, and that will be a game changer if it happens, because of course then the states will have to get moving again and we'll see compliance planning develop and that will change everything on the ground at least for the companies regulated by this rule. The other thing to keep in mind is Judge Kavanaugh's very well known for writing terrific cert opinions in the form of a dissent —
Richard Lazarus: Right, right.
Jody Freeman: Cert petitions, pardon me, in form of a dissent. We already saw from what he said today on the bench what his dissent, if it turns out to be a dissent in this case, will look like, how he will say this is a major question of incredible importance, economically and politically significant, we should have a clearer statement from Congress, separation of powers requires that we have Congress do this, not EPA —
Monica Trauzzi: Right.
Jody Freeman: All of that will go into this opinion, and it will tee up all of the issues beautifully for the Supreme Court.
Richard Lazarus: Right. One difference, though, for Judge Kavanaugh now is there now other judges on that bench who, like Judge Kavanaugh, are terrific advocates. There are three new ones who are actually some of the best Supreme Court advocates in the country. That's Judge Patty Millett, Judge Nina Pillard and Judge Sri Srinivasan. They're gonna be just as able to write dissents, if it comes down to that, which serve as effective cert petitions.
Monica Trauzzi: So fascinating. We have so much to watch. [Laughter] Thank you both for coming on the show.
Jody Freeman: Thank you.
Richard Lazarus: Well, thank you.
Monica Trauzzi: We very much appreciate it. Thank you.
Richard Lazarus: Thanks a lot.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
http://www.eenews.net/tv/videos/2166/transcript
-
First U.S. Gas Arrives in U.K. Amid Fierce Fracking Debate
Sep 28, 2016 | E&E Energywire
The first shipment of U.S. shale gas to the United Kingdom arrived in Grangemouth, Scotland, yesterday.
The tanker, carrying 970,000 cubic feet of ethane, is part of chemical company Ineos Group Ltd.'s $2 billion investment to create a virtual pipeline across the Atlantic.
The first U.S. shale gas arrives at a time when the United Kingdom is having a fierce debate about the future of hydraulic fracturing, a technology that is banned in many European countries.
Earlier this week, the country's Conservative government pledged to continue supporting shale gas, but the practice was soon criticized by the opposition Labour Party, as well as the Green Party.
"Britain should be a frack-free nation — that means keeping the gas under our countryside in the ground and banning fracked gas imports," said Caroline Lucas, the co-leader of the Green Party.
The United States started exporting liquefied natural gas in February. Two cargos arrived in Europe's Iberian Peninsula, where pipeline access to European gas is not available.
http://www.eenews.net/energywire/2016/09/28/stories/1060043517
-
(ACC Blog) The Chemistry of Disaster Relief
Sep 28, 2016 | American Chemistry Matters
By Judith Nordgren
The Louisiana flood waters have receded and so has the national media coverage of this disaster. The storm pummeled South Louisiana with almost seven trillion gallons of water in a week’s time. It flowed from parish to parish; the storm destroyed homes and businesses, and claimed lives. The TV cameras are gone, but the cleanup is only just beginning.
Flooding not only destroys homes and businesses, but it can also become a serious health hazard due to the pathogens entrained in those waters. A common household disinfectant, chlorine bleach, can be used to disinfect items that contacted precarious floodwater. Bleach can go a long way toward helping keep people healthy, especially during a cleanup.
Olin Corporation responded to Louisiana in its time of need by donating five truckloads of chlorine bleach, which were bottled into more than 20,000 1-gallon containers. This represents the second significant donation of bleach that Olin has made, following a donation of 50,000 gallons of bleach two years ago to help stem the horrific Ebola outbreak in West Africa.
Olin didn’t do it alone. Catholic Charities Baton Rouge and the Salvation Army helped distribute the bleach to three separate locations in Baton Rouge. Champion Packaging in Chicago donated all labor, packaging and freight to Louisiana.
The flood waters were the enemy, as they must always be assumed to be contaminated and not safe to drink. But water can be a life-saver during a disaster when it is disinfected. This historic flood in Louisiana serves as an acute reminder we all need to be prepared in the event of a disaster.
September is National Preparedness Month, and a new infographic—The Power of Preparedness—from the Centers for Disease Control and Prevention indicates that over 60 percent of Americans do not have an emergency plan that they have discussed with their household. As part of that plan, it’s important to think about water. Access to safe drinking water is something we all take for granted, but it’s not something we can rely on in an emergency. Water is one of the “non-negotiables” of our daily survival. According towww.ready.gov/water, each person in a household requires one gallon of safe water per day for drinking and sanitation. How does one prepare emergency water? The website includes directions for sanitizing plastic soda bottles with a very dilute solution of chlorine bleach. Treated tap water can then be stored in those sanitized bottles for up to six months.
Chlorine bleach represents the chemistry of disaster relief, whether that chemistry is applied to a flood cleanup in Louisiana, an Ebola epidemic in Africa, or simply helping to ensure that your family has an emergency store of safe water in your basement.
As Louisiana continues the cleanup and works to rebuild its communities, we’re reminded that chemistry can play a constructive role in disaster relief and preparation.How to Keep Drinking Water Safe in an Emergency:Important Flood Clean-up TipsEmergency Disinfection of Drinking WaterWater Storage Tips to Assist in Emergency Preparedness
Learn more about the safety benefits of chlorine here.
https://blog.americanchemistry.com/2016/09/the-chemistry-of-disaster-relief/
-
Inspection Failures Led to 2014 W.Va. Spill — CSB
Sep 28, 2016 | E&E Greenwire
By Gabriel Dunsmith
Federal chemical investigators this morning bashed Freedom Industries for its 2014 spill into the Elk River in West Virginia that led to contamination of drinking water supplies for thousands of residents.
The U.S. Chemical Safety Board also called for increased coordination among water authorities, local governments and corporations in order to prevent future spills.
The Freedom Industries leak attracted national outrage when 10,000 gallons of toxic compounds burst from a storage tank in Charleston, W.Va., on the morning of Jan. 9, 2014 (Greenwire, Jan. 10, 2014). Crude 4-methylcyclohexane methanol, or MCHM, along with other pollutants, flowed into a water intake valve and affected the drinking water of 300,000 residents across nine counties.
Corporate and government oversights led to the spill, CSB said today as it released its final report on the incident.
"Freedom Industries failed to inspect or repair corroding tanks," the CSB said in a statement.
Freedom Industries produces chemical compounds used in the mining, cement and steel industries.
The company had not performed tank inspections "for at least 10 years before the 2014 incident," said supervisory investigator Johnnie Banks. Had Freedom Industries done so, he continued, workers would have identified corrosion that was eating away at the tanks. The company could have repaired the tanks from there, he said.
"The best way to protect the public is to not have the leak in the first place," Banks told reporters this morning during a news conference.
The problem was compounded by the water utility's slow response, the board found, which "potentially" endangered locals' health.
"The state Department of Environmental Protection identified the MCHM release at 11:05 a.m. [on Jan. 9]," said CSB Chairwoman Vanessa Allen Sutherland, "but the water company did not notify the public of the 'do not use' order until almost seven hours after it became aware of the release."
The CSB also uncovered broader governmental failures during its investigation, finding that "nationwide, municipal water providers do not have programs to determine the location of potential chemical contamination sources," according to Sutherland.
"They also do not necessarily have written plans to respond to chemical spills like the one that occurred here," she continued.
With ongoing gaps in chemical and water regulations, the CSB warned, similar spills could happen elsewhere.
"No comprehensive aboveground storage tank law existed in West Virginia at the time of the release," Banks said.
Since the spill, Banks said, state lawmakers have implemented rules that should prevent or contain future leaks through more rigorous inspections and tank construction requirements.
But CSB did not answer a question that many environmental and public health advocates consider crucial: What impact did the toxins have on public health?
"Little is still known about the chronic health impact of exposure [to MCHM] at low concentration levels," said Banks. "The chemical safety data sheets, which are required by law, do not provide enough information to determine if water is safe to use or drink if contaminated."
MCHM is a skin irritant and is known to cause nausea, vomiting, dizziness and headaches. It "warrants further chronic carcinogenesis evaluation," according to the National Institutes of Health.
CSB called for chemical companies to address gaps in safety data sheets, in addition to regularly inspecting their storage tanks.
"Future incidents can be prevented with proper communication and coordination," said Sutherland in a statement. "Business owners, state regulators and other government officials and public utilities must work together in order to ensure the safety of their residents."
http://www.eenews.net/greenwire/2016/09/28/stories/1060043564
-
Lawsuits Take Aim at Chemical Giants Over Poisoned Drinking Water
Sep 28, 2016 | Colorado Springs Independent
By Nat Stein
It was only a matter of time.
Several avenues for legal recourse are now available to residents in the Fountain, Security, Widefield area who learned earlier this year that toxic chemicals have been seeping into their drinking water for decades. Three class-action lawsuits were filed in the past week — two by Denver-based Hannon Law Firm and one by Springs-based McDivitt Law Firm in partnership with New York-based Napoli Shkolnik PLLC — against a half dozen chemical manufacturers.
They share a central allegation: The companies "knew or should have known" about the danger their products posed to the environment, human health and private property, and were therefore wrong to keep making, distributing and profiting off them for decades.
This issue trickled into public awareness in January when routine but unrequired testing found concerning levels of perfluoroalkyls — or PFAs, which belong to the broader category, perfluorinated chemicals, or PFCs — in 94 public water systems nationwide, including three that serve 70,000 customers locally.
The actual amounts weren't enough to mandate action, but they were enough to raise flags among a community of researchers, public health experts and watchdogs who have long argued that the federal government's regulatory standards for these man-made, industrial chemicals are far too lenient given their documented links to cancer, liver damage and low birth weights.
Those January results put more pressure on the Environmental Protection Agency to act, so in May came a new provisional health advisory that lowered the level of PFCs considered potentially hazardous to 70 parts per trillion down from 400 ppt for PFOA and 200 ppt for PFOS. The action was not regulatory or enforceable, but did catalyze movement that's beginning to gain steam.
Locally, the contamination is likely coming from Peterson Air Force Base, where personnel have used a fire suppressant called Aqueous Film-Forming Foam (AFFF) to extinguish petroleum-based flames in both emergency and training situations. AFFF was originally developed in the 1960s through a partnership between the U.S. Naval Research Laboratory and 3M chemical company. Since then, other manufacturers have come up with their own formulations, used by military and municipal firefighters nationwide to save lives.
But, because it's full of PFCs, AFFF may also threaten lives. That's why its manufacturers now stand accused.
The Hannon complaints name 3M, Ansul and National Foam as defendants. The McDivitt/Napoli Shkolnik complaint does too, adding Angus Fire, Buckeye Fire Protection Co. and Chemguard.
Peterson AFB spokeswoman Shellie-Anne Espinosa tells the Indy that the base currently has 2,404 gallons in stock, still authorized for emergency use, nearly half purchased from Ansul in 2013-2014. Bases across the country will replace the foam with a more environmentally friendly alternative by the end of the year.
Investigative findings released by the Air Force Civil Engineer Center in August revealed several accidental discharges of AFFF at Peterson over the years (including one in which personnel tripped the manual release while playing basketball). But otherwise, the foam was used according to the manufacturers' instructions.
And that, plaintiffs argue, is exactly what went wrong. The chemical companies developed and sold a defective product without adequate warning about its dangers. Not only that, the suits allege, but the companies did so knowingly and recklessly.
Both law firms offer the same evidence (though more is likely to surface during discovery). First, 3M started monitoring its own employees' health in the mid-1980s and determined the fluorochemicals did indeed bioaccumulate in their bodies. Also, an EPA internal memo in 2000 about 3M's voluntary phaseout of PFOA and PFOS stated that "3M data supplied to EPA indicated that these chemicals are very persistent in the environment, have a strong tendency to accumulate in human and animal tissues and could potentially pose a risk to human health and the environment over the long term."
In 2000, 3M took those products off the market but didn't issue a recall while other manufacturers continued to produce PFC-laden AFFF. In 2010, EPA launched a stewardship program "inviting" major chemical companies to cease production. Other than 3M, none of the named defendants agreed to participate.
3M's attorney William A. Brewer III expressed confidence about his defense, saying by email, "We believe these legal actions against 3M in connection with AFFF lack merit, and fail to appreciate that 3M sold these products with instructions regarding their safe use and disposal," adding that "3M acted responsibly at all times."
The other defendants either ignored or declined the Indy's request for comment.
Though the lawsuits are similar in essence, there are subtle differences. Both list shared grounds for legal action — negligence, defective product design, failure to warn about that defective product design and unjust enrichment from the whole enterprise — but McDivitt includes nuisance, i.e., that the defendants' actions caused plaintiffs "inconvenience or annoyance" and "unreasonably interfered with the use and enjoyment of their property."
Both suits want the chemical companies to pay for personal injury and property damage, including costs of medical monitoring for those who drank the contaminated water, compensation for loss of property value and surrender of profits made off the wrongdoing.
The Hannon complaints identify the injured parties as residing in a particular geographic area bounded by the southern edge of the Fountain Water District on the north, Interstate 25 on the west, the southernmost point of Hanover Road on the south and the eastern boundary of Widefield Water District extended to Hanover Road to the east. Anyone who lives in that region and consumed municipally supplied water could be considered a member of that class action.
McDivitt sets forth multiple, overlapping classes: Fountain Creek Watershed Area residents who drink from the municipal water supply; residents of that same area who drink from private wells; and all area property owners.
Kevin Hannon, the Denver attorney whose firm has waged class-actions against big-name energy, insurance and car companies, chose not to comment, but Mike McDivitt, of the local personal injury firm, did go on record to say his and Hannon's firms are cooperating, not competing.
"The fact that there's more than one lawsuit just indicates the severity of the problem," McDivitt says. He expects the suits to be consolidated eventually because "at the end of the day, we're all on the same side" and indicated it's not out of the question for the litigation to eventually connect with others nationwide. (Around 5.2 million Americans drink water that contains more PFCs than is advised, according to a New York Times estimate.)
Private tort remedies of the sort now pursued seem to be all that's available to local residents given that PFCs are still unregulated. Congress recently overhauled the decades-old Toxic Substances Control Act (TSCA), the primary federal statute relevant to manmade toxins, but environmental advocates remain cynical that the reforms really have much teeth.
D.C.-based National Resource Defense Council's Public Health Director Erik Olson offers why lobbying for tougher protections of Americans' drinking water has been an uphill battle: Regulating chemicals already on the market is a "complex and burdensome" administrative process that the EPA doesn't have "the stomach" to take on.
EPA officials didn't reply to the Indy's request for comment by deadline, but PFCs have been designated a "contaminant of concern."
The reformed law's risk evaluation process now includes the opportunity to consider health effects specific to vulnerable populations (in the case of PFCs, newborns and the elderly). But Olson feels these improvements are more nominal than substantive. "Most people don't realize," he said, "that the entire regulatory system for toxic chemicals relies on studies done by the industry itself. And that's a really huge problem."
For the time being, local residents who think they may qualify as class members can contact the firms heading the litigation to learn about their options.
McDivitt believes "it would really be to your disadvantage to sit back and do nothing."
http://www.csindy.com/coloradosprings/lawsuits-take-aim-at-chemical-giants-over-poisoned-drinking-water/Content?oid=4069535
-
Latest Leak is Colonial's 5th in Ala. This Year
Sep 28, 2016 | E&E Greenwire
In the first five months of 2016, Colonial Pipeline Co. has been responsible for four separate spills of gasoline, fuel oil, diesel, kerosene or jet fuel in the Alabama environment.
Between 2010 and 2015, Colonial made only six such reports to the government.
Colonial's latest spill, which shut down gas stations across the state and caused a state of emergency declaration for several states, is the company's fifth spill this year (Greenwire, Sept. 19).
"When incidents do occur, we investigate and determine the cause alongside government regulators, and take corrective actions based on lessons learned to minimize the likelihood of similar events happening again in the future," the company said in a statement.
U.S. EPA will determine whether the most recent pipeline break violated federal regulations and potentially issue penalties for Colonial.
"A group at EPA will do the investigation to determine if any additional penalties are warranted," said Kevin Eichinger, EPA's coordinator for the spill. "That penalty component is not going to happen within the next month or so. The investigation takes some time".
http://www.eenews.net/greenwire/2016/09/28/stories/1060043559
-
U.S. Rep. Beutler Calls on USDOT to Study Oil-Train Safety Risks
Sep 28, 2016 | Progressive Railroading
U.S. Rep. Jaime Herrera Beutler (R-Wash.) is asking the U.S. Department of Transportation (USDOT) to study whether interspersing crude-oil rail cars with cars carrying nonvolatile commodities on trains would reduce the combustion risk during a derailment.
In a letter to the USDOT, she pressed department officials to provide information on the potential risk factor that has been expressed by local government, community and fire department members.
"Currently, oil trains are traveling along the Columbia River Gorge, and my focus is on ensuring federal regulations are making these shipments as safely as possible," wrote Beutler in the letter, which she addressed to U.S. Transportation Secretary Anthony Foxx, Federal Railroad Administrator Sara Feinberg and Pipeline and Hazardous Materials Safety Administrator Marie Therese Dominguez.
The lawmaker's concerns come in the wake of a crude-oil train derailment along the Columbia River Gorge in Mosier, Ore., in June. Sixteen cars of a Union Pacific Railroad train derailed and four caught fire. The train was transporting Bakken crude oil to Tacoma, Wash., when the incident occurred. No injuries were reported.
"Long lines of oil cars are becoming a more familiar sight in our region, and if breaking them up into smaller blocks will better protect our citizens, the Columbia River and nearby forests, we should put a federal standard in place — quickly," Beutler said.http://www.progressiverailroading.com/safety/news/US-Rep-Beutler-calls-on-USDOT-to-study-oil-train-safety-risks--49617
-
Alaska LNG Shipment Makes U.S. History
Sep 28, 2016 | E&E Energywire
By Margaret Kriz Hobson
Early yesterday morning, an Alaska Railroad Corp. (ARRC) freight train made history by hauling two 7,000-gallon International Organisation for Standardisation tanks of liquefied natural gas on a flatcar from the Anchorage rail yard to Fairbanks.
The 350-mile journey marked the first rail shipment of LNG in the nation.
ARRC received permission to carry a limited number of LNG shipments over the next two years from the Transportation Department's Federal Railroad Administration last October.
Under the terms of that permit, the railroad can initially transport up to 36 portable LNG tanks each week. Beginning in 2018, that limit increases to 60 tanks every four days. Each train must maintain a speed of no more than 40 mph.
The railroad, an independent corporation owned by the state, is beginning a monthlong demonstration project to prove that trains can safely transport LNG to energy-hungry consumers in central Alaska.
LNG shipments would be important for the railroad at a time when the company's bulk petroleum, coal and freight deliveries are declining. Currently, LNG is shipped to Fairbanks by truck.
But ARRC External Affairs Manager Tim Sullivan said the importance of the test run goes well beyond the railroad company.
"It's not just something that we're doing for the benefit of the Alaska Railroad," Sullivan said. "At the end of the day, it could really benefit the state of Alaska and the railroad industry as a whole down in the Lower 48. If we can do this right, there will be more opportunities."
ARRC's demonstration project comes at a time when the state of Alaska is working with utilities in Fairbanks to ship increasing amounts of gas to central Alaska to offset the region's high energy costs and to ease winter air pollution problems caused by oil heating and wood-burning fireplaces.
ARRC is hauling LNG using two cryogenic containers on loan from Hitachi High-Tech AW Cryo Inc., which is based in Vancouver, Canada. The two 40-foot intermodal containers have fortified tank walls and protective structures around each tank. In preparation for the LNG transport, ARRC held safety training sessions for its employees and for more than 160 firefighters and other first responders from communities along the transportation route.
Yesterday's rail shipment began at the Titan LNG facility near Anchorage, where the tanks were filled with fuel from Alaska's Cook Inlet before being hauled by truck to the city rail yard. The LNG containers were loaded onto a railroad flatcar and transported by freight train as part of the company's northbound overnight shipment to Fairbanks.
Once in Fairbanks, the LNG containers were carried 4.5 miles on a flatbed truck and unloaded at the Fairbanks Natural Gas LLC storage facility. The empty tanks will then be reloaded onto a railroad flatcar and added to the southbound freight train headed to Anchorage.
"We're hopeful that the folks that want to get gas to Fairbanks will look at this project as a viable and efficient option for the future," Sullivan said.
Over the long term, state officials are also pushing for construction of a multibillion-dollar natural gas pipeline project to move gas from the North Slope to an export terminal in Valdez. That project would include several gas off-take points for communities along the route.
"We recognize that the focus here in the state is to get a gas pipeline," Sullivan noted. "We're looking at being the interim solution. Because even if the project started today, we're still looking eight, 10, 12 years down the road or even longer before a gas pipeline is actually moving gas.
"The folks in Fairbanks need some solutions today," he noted. "So were hopeful that in the interim we can provide that solution."
http://www.eenews.net/energywire/2016/09/28/stories/1060043515
-
Hydrogen Economy Gets Real: Renewable Power for Rail Transportation
Sep 28, 2016 | Triple Pundit (in Real Clear Energy)
By Tina Casey
Just a few years ago the sustainable hydrogen economy seemed a long way off, but things are moving along at a rapid clip. In the latest development, French mobility companyAlstom says it is ready to market zero-emissions, hydrogen-powered passenger trains in Europe. The new trains could hit the rails by the end of next year.
That may not be such great news for the environment if Alstom plans to get all that hydrogen from natural gas, which is the conventional way to do it. However, we’re guessing the company is already looking to provide its clients with hydrogen from renewable sources.
The trouble with hydrogen
Hydrogen is a zero-emission fuel, but the natural gas angle pretty much kills the tailpipe advantages. That’s especially true in the U.S., where the impacts of natural gas fracking include air pollution and impacts on water resources.
Earthquakes are another side effect of fracking, say some scientists. Though the drilling operation itself has been linked to seismic activity only in rare cases, the disposal of wastewater from oil and gas drilling, including fracking, has made formerly quiet areas into earthquake hotspots.
Methane leaks along the natural gas supply chain, from wellhead to storage and pipelines, is another critical issue in terms of both global warming and local hazards.
In addition to environmental impacts, researchers are also beginning to amass evidence ofpublic health impacts in areas that have experienced the recent fracking boom. (Frackingis short for hydraulic fracturing, a formerly “unconventional” oil and gas drilling method with relatively limited application until the Bush administration provided it with an exemption from federal water protection rules.)
All in all, depending on natural gas for the hydrogen supply chain of the future is not a good idea.
Sustainable hydrogen for transportation
Alstom seems to have the jump on that problem. Europe is a promising staging area to launch hydrogen-powered trains because the EU has already begun to invest in sustainable hydrogen production.
The emphasis is on using renewable energy, such as wind energy or tidal energy, to power an electrocatalytic operation that strips hydrogen from water.
In effect, renewable hydrogen production is a form of energy storage. Instead of being used in combustion engines, hydrogen can be stored and used in mobile fuel cells for electric vehicles and other transportation systems, as well as stationary fuel cells that generate electricity for buildings.
Moreover, last year Alstom hooked up with the company Hydrogenics to do this:
“Hydrogenics … a leading developer and manufacturer of hydrogen generation and hydrogen-based power modules, today announced that it has signed a 10 year exclusive agreement to supply Alstom Transport with hydrogen fuel cell systems for Regional Commuter Trains in Europe,” the company said in a press release.
That’s significant because Hydrogenics specializes in wind-to-hydrogen production.
Earlier this summer, Hydrogenics and other partners launched the first megawatt-scale energy storage project in Asia, at the Lam Takhong Wind Turbine Generation Project in Thailand. An electrolyzer powered by wind energy will produce hydrogen from water during off-peak hours. The stored hydrogen will then be used to provide fuel for a fuel cell system.
The fuel cell system will be kicked into gear as needed to provide electricity for the Learning Center, an energy-neutral project of the Electricity Generation Authority of Thailand.
So, it seems a pretty safe bet that Alstom’s pitch for hydrogen-powered transportation also includes a renewable energy angle.
Hydrogen-powered trains
That finally brings us to Alstom’s new hydrogen-powered trains.
Alstom has its sights set on the market for train systems in Europe that are not yet electrified. These systems run on diesel, and many of them are not likely to be electrified any time soon.
Alstom’s Michael Wittwer observes:
“Despite numerous electrification projects in several countries, a significant part of Europe’s rail network will remain non-electrified in the long term. In many countries, the number of diesel trains in circulation is still high – more than 4,000 cars in Germany, for instance.”
Alstom’s solution, which it introduced at the InnoTrans railway transportation trade show last week, is dubbed Coradia iLint.
The company already signed letters of intent with several transportation systems in Germany to bring the Coradia online.
The new train is actually based on Alstom’s Coradia Lint 54, which runs on diesel. The diesel version has a strong track record, with more than 2,400 trains in service globally. Alstom appears to be relying on this record to pitch the new zero-emissions version.
To sweeten the pot, Alstom is packaging the train as a turnkey solution that includes maintenance and the entire hydrogen infrastructure, presumably through its partnership with Hydrogenics.
As for how it works, the heart of the system is a fuel cell stack and hydrogen storage tanks. As the train requires electricity, the hydrogen combines with ambient oxygen to generate a charge. The only emission is water.
The system is also supported by lithium-ion battery packs. This auxiliary system is combined with regenerative braking to reduce the consumption of hydrogen.
The primary market consists of existing train routes that rely on diesel. The new train may also have some appeal as a replacement for aging electric systems that are due for an overhaul, especially where aesthetic concerns provide an extra motivation to eliminate overhead wires.
Hydrogen transportation for the U.S. — and more
Compared to Europe, the U.S. has been a little slow off the starting gate when it comes to hydrogen transportation.
However, the Obama administration launched a series of hydrogen programs ranging from foundational research to support for local initiatives.
One recently announced Energy Department program is called the H2@scale concept. This initiative aims at “wide-scale deployment of hydrogen to deeply decarbonize the U.S. electricity generation, transportation, and industrial sectors,” with a focus on renewable hydrogen.
The initiative also looks at deploying heat from nuclear reactors and other industrial processes to produce fossil-free hydrogen.
Hydrogen-powered trains are also on the horizon in America. Texas-based BSNF Railway, for example, is working on a hybrid fuel cell train for urban applications, in partnership with the Engineer Research and Development Center of the U.S. Army Corps of Engineers.
California lent a kickstart to the hydrogen fuel cell electric vehicle market, and last year it commissioned a report on the feasibility of hydrogen freight trains.
http://www.triplepundit.com/2016/09/hydrogen-economy-gets-real-renewable-power-rail-transportation/
-
A Growth-Friendly Climate Change Proposal
Sep 28, 2016 | Wall Street Journal
By Greg Ip
Climate change landed in a Washington, D.C., court this week as Republican governors and business groups sued to block President Barack Obama’s sweeping regulation of greenhouse gas emissions.
The lawsuit is only the latest example of how polarized politics have made it so difficult to reconcile two divergent priorities: climate change and economic growth.
Across the country, however, voters are being offered a plan that does just that.
In November, Washington state will vote on the country’s first revenue-neutral carbon tax. By embedding the cost of carbon dioxide emissions in the price consumers and businesses pay for energy, such a tax automatically encourages conservation and makes renewable energy more appealing, without regulations and subsidies that distort investment and undercut growth. Because the revenue is used to cut other taxes, it doesn’t crimp incomes or undermine business competitiveness.
In environmentally conscientious Washington state, Initiative 732, as the ballot initiative is known, ought to be a slam-dunk. It isn’t—a poll shows voters roughly split. The reasons are a window into why climate policy is so polarizing.
The resistance comes not just from the usual opponents on the right, but even more strikingly from the left. The reason: Many environmentalists see climate change as an opportunity to remake the economic order. They want to use carbon taxes to fund renewable energy and green technology and bolster the incomes of workers and communities they say are most hurt by climate change. Whatever the merits of these goals, the effect is to equate climate policy with bigger government, which makes it harder to achieve broad-based support.
Nearly a century ago the British economist Arthur Pigou advanced the idea of stamping out socially destructive activity by taxing it.
Washington state’s proposed levy is a textbook “Pigouvian tax” which should come as no surprise since it’s the brainchild of an economist: Yoram Bauman, who previously taught economics at the University of Washington. He now makes his living doing stand-up comedy about economics (One liner: “You might be an economist if you refuse to sell your children because they’ll be worth more later.”).
Democratic Governor Jay Inslee had proposed a cap-and-trade plan modeled on California’s, but couldn’t get it passed through either the Democratic-controlled state House or the Republican-controlled Senate.
So Mr. Bauman’s group, Carbon Washington, put forth I-732 as an alternative. It would impose a $15 tax per ton of carbon dioxide in the first year, rising to $25 in the second, and thereafter by 3.5% after inflation annually to $100 in current dollars.
The tax would add 25 cents to the price of a gallon of gasoline and boost the average monthly electric bill by about $8. All the revenue—roughly $2 billion a year—would be returned to taxpayers via a one-percentage point cut in the state sales tax, elimination of a business tax, and a tax rebate of up to $1,500 a year to 400,000 low-income workers.
The Sightline Institute, a Seattle-based environmental think tank, reckons the tax is just high enough to achieve the state’s statutory emissions reduction goal: 50% below 1990 levels by 2050.
I-732 is modeled on a similar levy introduced in British Columbia in 2008 that now stands at $23 per metric ton. A study by Werner Antweiler and Sumeet Gulati at the University of British Columbia found the tax has curbed the average person’s fuel consumption by 7% and boosted the average car’s fuel efficiency by 4%.
Given all that, why don’t more environmentalists support it? In part, internal politics: Some groups are miffed they didn’t have more say in the design of I-732. Others think I-732 won’t pass and their energy is better devoted to politically more viable initiatives. Having failed to pass cap-and-trade legislation, Mr. Inslee has, like Mr. Obama, since moved to cap some emissions via regulation.
But the main reason is that I-732 sends its revenue back to taxpayers, whereas environmentalists would like the revenue for other priorities. The Washington Environmental Council, which doesn’t support I-732, says revenue from any climate initiative should be plowed into the “clean energy economy…infrastructure for clean, abundant water and healthy forests” and assistance for “the most vulnerable workers and communities.”
Rather than compromise, other climate activists have sought to oust their political opponents—usually Republicans.
Their stance is short-sighted, for two reasons. While a carbon tax makes emissions caps and subsidies redundant, it can also complement them by nudging consumers in the same direction. Second, it risks turning climate change into a one-party issue.
Some environmentalists “have this dream the Republican Party is going to jump off the cliff, but the evidence is the Republican Party is going to stick around for a while,” says Mr. Bauman.
It is precisely because a revenue-neutral carbon tax isn't weighed down by so many ancillary social goals that it stands the best chance of appealing to people across the political spectrum.
http://www.wsj.com/articles/a-growth-friendly-climate-change-proposal-1475079939
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
Add recipients
Suggested