Preview Newsletter
ACC AM 12/21/2016
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(ACC Mentioned) VIDEO: Recession Should Be Base Case Scenario For 2017 - Consultant
Dec 21, 2016 | ICIS
By Will Beacham
Chemical industry executives should prepare for recession as a base case scenario for 2017, according to a leading chemical industry consultant. -
(ACC Mentioned) Seven New Plastics Industry Associations Join Effort To Combat Marine Litter
Dec 21, 2016 | British Plastics & Rubber
By Leanne Taylor
Seven new plastics industry associations from across the globe have pledged their commitment to the fight against marine litter in 2016. -
(ACC Mentioned) Chemical Activity Still Strong
Dec 21, 2016 | Seeking Alpha
Here's another update of an indicator I've been highlighting for the past several months. -
How the Trump Administration Is Likely to Attempt to Undo Rules Obama Enacted
Dec 21, 2016 | BNA Daily Environment Report
By Jonathan G. Cedarbaum
At least since the Carter-Reagan transition, every time party control of the White House has changed, the incoming president has acted quickly to suspend and undo regulatory initiatives undertaken by his predecessor. -
EPA Smooths Process for Chemical Restrictions Under New Law
Dec 21, 2016 | BNA Daily Environment Report
By Sam Pearson
The Environmental Protection Agency is moving to cut procedural requirements no longer mandated under the new chemical safety law approved earlier this year. -
EPA Amends Procedures for TSCA Section 6 Rulemaking
Dec 20, 2016 | The National Law Review
By Bergeson & Campbell, P.C.
The U.S. Environmental Protection Agency (EPA) is scheduled to publish in the December 21, 2016, Federal Register a final rule regarding procedures for rulemaking under Section 6 of the Toxic Substances Control Act (TSCA). -
Free-Market Group Targets EPA Chemical Programs
Dec 20, 2016 | Inside EPA
A free-market think tank that vigorously opposes EPA rules is urging Congress to address two non-regulatory EPA chemical programs -- the influential Integrated Risk Information System (IRIS) chemical analysis program and the voluntary Safer Choice program that promotes safer chemicals -- which the group says have significant regulatory and market effects. -
Ethylene Oxide Is Carcinogenic If Inhaled, Says US EPA
Dec 21, 2016 | Chemical Watch
The US EPA has issued its final evaluation of ethylene oxide's inhalation carcinogenicity, as part of its Integrated Risk Information System (IRIS) assessment programme. -
Canada To Ban Asbestos
Dec 21, 2016 | Chemical Watch
By David Stegon
Health Canada has announced plans to ban asbestos and asbestos-containing products by 2018 through new regulations that outlaw the manufacture, use, import and export of the substances under the Canadian Environmental Protection Act (Cepa). -
Industry Unconcerned About Bisphenol A Classification in EU
Dec 21, 2016 | BNA Daily Environment Report
By Stephen Gardner
A European Union decision to list the widely used chemical bisphenol A as a substance of very high concern under the bloc's REACH regulation should have “no direct implications” for most applications that use the substance, an industry group told Bloomberg BNA Dec. 20. -
Commission Adopts BPA Restriction In Thermal Paper
Dec 21, 2016 | Chemcial Watch
The European Commission has published a Regulation amending Annex XVII - the restricted substances list - to add bisphenol A (BPA). -
Echa's Board Of Appeal Supports Request For More Data On Triclosan
Dec 21, 2016 | Chemical Watch
Echa's Board of Appeal has supported the agency in its request for further data on triclosan under the REACH substance evaluation process. -
Echa Biocides Committee Backs 16 Substance Approvals
Dec 21, 2016 | Chemical Watch
By Vanessa Zainzinger
Echa’s Biocidal Products Committee adopted 17 opinions that support the approval of active substances for use as disinfectants and preservatives, at its meeting last week. -
Clientearth Sues Commission Over DEHP Authorisation
Dec 20, 2016 | Chemical Watch
By Clelia Oziel
NGO ClientEarth is taking the European Commission to court over its controversial decision to grant authorisation for uses of the phthalate DEHP in recycled PVC until February 2019. -
Obama Bans New Oil Drilling on Millions of Acres of U.S. Waters
Dec 21, 2016 | BNA Daily Environment Report
By Jennifer A. Dlouhy and Josh Wingrove
President Barack Obama banned new offshore oil and gas development in more than 100 million acres of the U.S. Arctic and undersea canyons in the Atlantic Ocean, an announcement certain to provoke a fight with the Republican-led Congress and his successor in the White House. -
How Firefighters Can Train For Hazmat Transport Incidents
Dec 21, 2016 | Fire Chief
By William E. Offerman
Preparedness means a lot of different things depending on who you talk to. For many communities and emergency responders, a critical part of being prepared is being ready to respond to an incident involving hazardous materials. -
Trump Supporters Favor Maintaining Climate Policy — Poll
Dec 20, 2016 | E&E News PM
By Jennifer Yachnin
Although President-elect Donald Trump vowed to roll back environmental regulations next year — and nominated officials to U.S. EPA and the Energy and Interior departments who appear ready to back his proposals — a poll shows more than half of Trump voters would prefer for climate regulations to remain unchanged. -
Shareholder Advocacy on Climate Change Won't Let Up
Dec 21, 2016 | BNA Daily Environment Report
By Andrea Vittorio
Pressure by pension funds, endowments and other large investors for corporate action on climate change is expected to become even more prevalent this proxy season. -
Litigation: Court Delays Ozone NAAQS Argument
Dec 20, 2016 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit, on its own volition, has delayed oral argument in consolidated litigation against EPA's 2015 ozone national ambient air quality standard (NAAQS), which the agency tightened down to 70 parts per billion (ppb) from a level of 75 ppb set in 2008. -
EPA Drops Bid To Complete ESPS Trading Rules
Dec 20, 2016 | Inside EPA
EPA has decided to drop its effort to craft final model trading rules for its power plant greenhouse gas rule, a sign that the exiting Obama administration recognizes that the incoming Trump administration will likely end its controversial rulemaking effort.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no clips to report at this time.
Transportation News
Environment News
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(ACC Mentioned) VIDEO: Recession Should Be Base Case Scenario For 2017 - Consultant
Dec 21, 2016 | ICIS
By Will Beacham
BARCELONA (ICIS)--Chemical industry executives should prepare for recession as a base case scenario for 2017, according to a leading chemical industry consultant.
Paul Hodges, chairman of International eChem, says that multiple macro-economic factors together with long-term demographic changes mean that the industry will operate in challenging times next year and beyond.
“There are so many flashing red lights for the global economy – operating rates in the chemical industry, disruption from forthcoming trade battles, debt problems in China, currency reform issues in India. We’ll be very lucky if one of these doesn’t cause a downturn in 2017,” says Hodges, who writes the Chemicals and the Economy blog for ICIS.
He highlighted American Chemistry Council capacity utilisation data which is almost as low as the 2008/9 trough: “That’s not a very healthy position as we start the year.”
Hodges finds a clear link between the rise of protectionism and an aging global population which has less spending power. “Globalisation was essential and a very successful policy when the young population drove demand. With today’s aging population you don’t need lots of stuff, so sustainability will be the key driver for the next 25 years.”
He says business models in the chemical industry must adapt to these trends. “When one door closes another opens,” he says.
Read Paul Hodges’ 2017 Outlook in the 6 January issue of the new digital-only ICIS Chemical Business magazine. Click here to subscribe.
http://www.icis.com/resources/news/2016/12/21/10064952/video-recession-should-be-base-case-scenario-for-2017-consultant/
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(ACC Mentioned) Seven New Plastics Industry Associations Join Effort To Combat Marine Litter
Dec 21, 2016 | British Plastics & Rubber
By Leanne Taylor
Seven new plastics industry associations from across the globe have pledged their commitment to the fight against marine litter in 2016.
The new signatories added to “The Declaration of the Global Plastics Associations for Solutions on Marine Litter”, otherwise known as “The Joint Declaration” bring participants from both countries and types of plastics not previously represented.
These include the American Fibre Manufacturers Association (AFMA), the Bangladesh Plastic Goods Manufacturers & Exporters Association (BPGMEA), the Flexible Packaging Association (FPA), the Ghanaian Plastics Manufacturers Association (GPMA), the Myanmar Plastics Industries Association (MPIA), the Indonesian Olefins, Aromatics and Plastics Association (INAPLA), and the Vietnam Plastics Association (VPA).
“We’re excited to welcome each of these new partners, who bring perspectives from countries in Asia and Africa, or types of plastic not previously represented in our Joint Declaration,” said Steve Russell, Vice President, Plastics, American Chemistry Council, at the 27th Global Meeting on Plastics and Sustainability in Hanoi, Vietnam.
At the meeting, delegates also agreed that going forward the group will become the “Global Plastics Alliance.”
Delegates from 17 countries and four continents participated in the Global Meeting – making this the largest and best attended meeting to date.
“Addressing marine litter issues effectively requires that we bring local, regional and global stakeholders together,” said Karl-H. Foerster, Executive Director of PlasticsEurope. “Broadening our fold helps us find new partners and opportunities to tackle this very serious problem.”
“Together, as a united, global industry, we’re involved in hundreds of marine litter prevention programs in all regions of the globe,” said Callum Chen, Secretary General of the Asia Plastics Forum. “But there is still much to do. Growing our ranks helps further grow our work.”
The Global Declaration was launched in March 2011 at the 5th International Marine Debris Conference. Today, the Declaration has been signed by 69 plastics associations from regions across the globe.
Recognising their important role in fighting marine litter, these plastics associations have launched and are supporting projects in six key areas aimed at contributing to sustainable solutions. The six focus areas of the Global Declaration are education, research, public policy, sharing best practices, plastics recycling/recovery, and plastic pellet containment.
http://www.britishplastics.co.uk/seven-new-plastics-industry-associations-join-effort-to-comb/
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(ACC Mentioned) Chemical Activity Still Strong
Dec 21, 2016 | Seeking Alpha
Here's another update of an indicator I've been highlighting for the past several months. The American Chemistry Council's Chemical Activity Barometer (see chart above) hit a new all-time high this month, rounding out a significant pickup in the second half of this year, and suggesting that the economy will register stronger growth in the months to come.
As the chart above shows, the year-over-year gain in the 3-month moving average of the CAB has tended to lead a similar gain in industrial production, which has been weak for some time now.
http://seekingalpha.com/article/4031880-chemical-activity-still-strong
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How the Trump Administration Is Likely to Attempt to Undo Rules Obama Enacted
Dec 21, 2016 | BNA Daily Environment Report
By Jonathan G. Cedarbaum
Jonathan G. Cedarbaum is a partner in WilmerHale's Government and Regulatory Litigation Group. Between 2009 and 2011, he served as a deputy assistant attorney general, the principal deputy assistant attorney general and acting assistant attorney general in the Justice Department's Office of Legal Counsel. He also served as an attorney-adviser in that office from October 1999 until May 2002.
The incoming Trump Administration is expected to break the mold in many ways, but in one respect it is likely to follow recent precedent fairly closely, author Jonathan G. Cedarbaum of WilmerHale writes: President Trump is likely to act quickly to suspend and undo regulatory initiatives undertaken by the Obama Administration. Cedarbaum outlines the three main lines of attack the new president will have available, and which may be especially robust, given the probable support of a Congress fully controlled by Republicans.
At least since the Carter-Reagan transition, every time party control of the White House has changed, the incoming president has acted quickly to suspend and undo regulatory initiatives undertaken by his predecessor. President Trump is expected to undertake similar efforts as soon as he assumes office on Jan. 20, 2017. This article describes the different ways in which these regulatory reversals can be accomplished as well as some of the administrative law principles that constrain such efforts.
The article proceeds in three parts. Part I describes unilateral Executive Branch methods for undoing regulations. Part II explains how the Republican-controlled Congress may use the Congressional Review Act to overturn regulations adopted during the last eight months of the Obama Administration. Part III briefly identifies how the Trump Administration's arrival may affect cases in which Obama Administration regulations are already being challenged in court.
It is important to keep in mind that the discussion here provides only a brief, general overview of the issues. The fate of any particular regulatory initiative will turn, in significant part, on the terms of the particular governing statute, the identity of the agency involved, the status of the regulation in the rulemaking process and the timing of its adoption and, if already subjected to judicial review, the views of the judge or judges overseeing the litigation.
I.
Unilateral Executive Branch Efforts
The rulemaking process. In order to understand the different ways in which federal regulations may be undone, one must understand the steps in the process by which regulations are created and made legally effective. Under the Administrative Procedure Act, agencies typically follow a four-step process in issuing regulations: (i) issuing a notice of proposed rulemaking; (ii) receiving comments on the proposed rule; (iii) issuing a final rule; (iv) setting an effective date for the rule that is at least 30 days after publication of the final rule in the Federal Register. 1
1 See 5 U.S.C. §553.
Stopping proposed regulations and regulations that have not yet taken effect. On the first day of the George W. Bush and Obama Administrations, the White House chief of staff issued a memorandum on behalf of the President directing agencies to freeze rulemakings in their tracks. 2 Based on those models, we can expect Trump White House Chief of Staff Reince Priebus to issue a similar memorandum on Jan. 20, 2017, instructing agencies to do the following:
2 See Memorandum for the Heads and Acting Heads of Executive Departments and Agencies from Andrew H. Card, Jr., Assistant to the President and Chief of Staff (Jan. 20 2001), 66 Fed. Reg. 7702 (Jan. 24, 2001); Memorandum for the Heads of Executive Departments and Agencies from Rahm Emanuel, Assistant to the President and Chief of Staff (Jan. 20, 2009), 74 Fed. Reg. 4435 (Jan. 26, 2009). At the start of the Clinton Administration, OMB Director Leon Panetta issued the equivalent memorandum. See Memorandum For the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291 from Leon E. Panettta, Director, Office of Management and Budget, Re: Regulatory Review (Jan. 22, 1993), 58 Fed. Reg. 6074 (Jan. 25, 1993). President Reagan himself issued a similar memorandum a week after the start of his administration. See Memorandum from President Ronald Reagan for the Secretary of the Treasury, the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Secretary of Energy, the Secretary of Education, the Administrator of the Environmental Protection Agency, Re: Postponement of Pending Regulations (Jan. 29, 1981), 46 Fed. Reg. 11227 (Jan. 29, 1981). The Justice Department's Office of Legal Counsel issued a memorandum early in the Reagan Administration briefly setting forth its view of the legal basis for the President's memorandum. See Memorandum for the Director, Office of Management and Budget, from Larry L. Sims, Acting Assistant Attorney General, Re: Presidential Memorandum Delaying Proposed and Pending Regulations, 5 Op. OLC 55 (Jan. 28, 1981). A few weeks later, President Reagan issued Executive Order 12291, establishing a process for centralized review of rulemaking efforts. See Executive Order 12291: Regulatory Review, 46 Fed. Reg. 13,193 (Feb. 17, 1981). For an informative review of these efforts, see Jack M. Beerman, Midnight Rules: A Reform Agenda, Final Report for the Administrative Conference of the United States (May 14, 2012), available at https://www.acus.gov/sites/default/files/documents/FINAL%20Midnight%20Rules%20Report%20%5B5-14-12%5D.pdf.
• Prohibit the sending of proposed or final regulations to the Federal Register for publication until reviewed by an appropriate Trump Administration political appointee
• Direct agencies to pull back from the Federal Register any regulations or proposed regulations sent there that have not yet been published, again for review by an appropriate Trump Administration political appointee
• Direct agencies to delay by 60 days the effective date of final regulations that have already been published but have not yet taken effect and, possibly to re-open the comment period for these regulations.
These regulatory freeze memoranda have recognized exceptions for regulations and proposed regulations that are subject to statutory deadlines or court orders inconsistent with their directives and for regulations that need to move forward because they concern emergency or other urgent situations relating to health and safety. And it is important to note that the White House “regulatory freeze” memoranda have not sought to compel independent agencies—as opposed to “regular” departments and agencies—to follow their directions but have, if addressed to them at all, requested their compliance. 3 The Obama Administration memorandum was the first to include a directive to re-open comment periods for certain regulations. 4 On the more limited ability of the President to direct independent regulatory agencies than to direct “regular” departments and agencies.
3 On the more limited ability of the President to direct independent regulatory agencies than to direct “regular” departments and agencies, see
, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2319-2331 (June 2001).4 The initial memorandum from Obama Chief of Staff Rahm Emanuel was followed by a memorandum from OMB Director Peter Orszag giving further instructions on how to determine which regulations should have their effective dates delayed and which have comment periods re-opened. See Memorandum for the Heads of Executive Departments and Agencies from Peter R. Orszag, Director, Office of Management and Budget, Re: Implementation of Memorandum Concerning Regulatory Review (Jan. 21, 2009), available at http://www.foreffectivegov.org/sites/default/files/regs/PDFs/OrszagMemo09-08.pdf.
Prohibitions on publication in the Federal Register, as well as withdrawals from the Federal Register appear to have been effective in the past, though evidence is difficult to collect given the non-public nature of these actions and the apparent lack of challenges to them in court. 5
5 See Beerman, supra, at 66-68.
Brief delays in effective dates also appear to have been effective by and large, though some have been challenged, and a study by the Government Accountability Office found that most of the rules whose effective dates were delayed at the outset of the George W. Bush Administration ultimately were allowed to go into effect after those initial delays. 6 Agencies have offered different justifications for exempting brief effective date delays from the APA's notice-and-comment requirements, with some claiming the delays are procedural rather than substantive and others pointing to various grounds as satisfying the APA's “good cause” exception, including the regulatory freeze memorandum itself, the need for the new Administration to have time to review the rules, and purportedly relevant economic conditions. 7 The Obama Administration made a number of efforts, when time permitted, to provide notice and seek comment on effective date delays. 8 A number of agency delays in effective dates without notice and comment have been challenged in court, with mixed results, and, given the relatively short delays involved in many cases, such delays may expire before a court has an opportunity to weigh in. 9
6 See GAO, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the Administration's January 20, 2011 Memorandum, GAO-02-370R (Feb. 15, 2002); see also Beerman, supra, at 68-80.
7 See Beerman, supra, at 68-80, for a review of the use of these various justifications. The OLC memorandum issued at the outset of the Reagan Administration outlined all of them as possibilities, noting that all such decisions would subject to challenge in court.
8 See Beerman, supra, at 75-76.
9 See Sierra Club v. Jackson, F. Supp.2d 11, 26-28 (D.D.C. 2012) (reviewing decisions reaching different conclusions on the question whether a delay in effective date constitutes substantive rulemaking); Sierra Club v. Jackson, F. Supp.2d 9 (same and calling for additional briefing on the issue); Natural Res. Def. Council v. Abraham, 355 F.3d 179, 204-206 (2d Cir. 2004) (finding 60-day delay in effective date of Energy Department regulation to be substantive rulemaking and rejecting availability of good cause exception); Environmental Def. Fund v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) (deferral of permitting process under EPA regulations was equivalent to suspension of the regulation and so substantive rulemaking requiring notice-and-comment procedures); Natural Res. Def. Council v. EPA, 683 F.2d 752, 762-767 (3d Cir. 1982) (indefinite suspension of EPA regulations constituted substantive rulemaking requiring notice-and-comment rulemaking); Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 582 (D.C. Cir. 1981) (six-month delay in effective date of Labor Department regulation constituted substantive rulemaking, but finding good cause exception to notice-and-comment requirements applicable based on five considerations rendering this a “special, possibly unique, case”).
Once temporary delays in effective dates run out, if agencies want to revoke regulations or make substantive amendments to them, they will normally need to proceed through notice-and-comment procedures, and courts will judge their actions under the same APA standards that they use in assessing the lawfulness of other rulemaking efforts. 10 As the Supreme Court has explained more than once, “Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. … ‘In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.’ It follows that an ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’” 11
10 See generally Motor Vehicle Mfrs Ass'n of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41-43 (1983). For two examples of courts holding unlawful an attempt by a new Administration to make substantive changes in regulations promulgated by its predecessor because of inadequate notice-and-comment procedures, see North Carolina Growers’ Ass'n v. United Farm Workers, 702 F2d 755 (4th Cir. 2012) (Obama Labor Department's ninth-month suspension of Bush Administration H-2A regulations and temporary reinstatement of prior regulation constituted rulemaking and was arbitrary and capricious because of limitations on notice-and-comment process); United Farmworkers v. Chao, 227 F. Supp. 2d 102, 107-110 (D.D.C. 2002) (Bush Administration abrupt change in interpretation of H-2A regulations required notice-and-comment process and was arbitrary and capricious).
11 Encino Motorcars v. Navarro, 136 S. Ct. 2117, 2125-26 (2016) (internal citations omitted; quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-516 (2009); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981 (2005)).
II. Congressional Disapproval of Final Regulations Under the Congressional Review Act
Enacted in 1996, the Congressional Review Act (CRA) requires agencies to submit rules to Congress and establishes a special process for Congress to overturn rules by enacting a special joint resolution within 60 legislative days of a rule's submission. 12Because joint resolutions are subject to presidential veto, and a President is virtually certain to veto a joint resolution disapproving a rule promulgated during his own administration, Congress has rarely passed joint resolutions of disapproval under the CRA, and it has used the CRA to overturn a rule only once.
12 The CRA is codified at 5 U.S.C. §§801-808.
The CRA provides a second opportunity for congressional review of rules that are submitted during the last 60 legislative days of a congressional session. Those rules are also subject to review by Congress in its next session, as though the rules had been submitted on the fifteenth legislative day of that session. 13 When a presidential transition involves a change in party and the new Congress that convenes at the beginning of the new President's term is controlled by his party, this CRA “second look” provision may thus provide an opportunity for the new Congress to disapprove regulations promulgated by the outgoing administration unhindered by the prospect of a presidential veto.
13 See 5 U.S.C. §801(d).
The convening in January 2017 of the 115th Congress, both of whose houses will be controlled by Republican majorities, presents just this scenario. All final rules issued less than 60 legislative days before the end of the current congressional session will be subject to CRA review and potential disapproval by the Congress that convenes in January. According to the Congressional Research Service (CRS), based on the expected legislative calendars for the rest of the current congressional session, all final regulations submitted to Congress after May 16, 2016, will be vulnerable to CRA disapproval by the new Congress. 14 CRS has recently identified 48 “major rules” that fall into this category. 15 For these purposes, major rules are ones that either are expected to have “an annual effect on the economy of $100,000,000 or more,” result in “a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions,” or cause “significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability” of U.S. companies to compete against non-U.S. companies. 16 For major rules (with certain limited exceptions, the CRA also requires a delay in their effective date until the latest of “[i] 60 days after the date that the rule is published in the Federal Register or received by Congress, whichever is later; [ii] if Congress passes a joint resolution of disapproval and the President vetoes it, the date on which either house of Congress votes and fails to override the veto or 30 session days after the date Congress received the veto, whichever is earlier; or [iii] the date the rule would have otherwise taken effect, if not for this provision of the CRA.” 17
14 CRS, Agency Final Rules Submitted After May 16, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act, Insight IN10437 (Nov. 9, 2016).
15 CRS, “Major” Obama Administration Rules Potentially Eligible to be Overturned under
the Congressional Review Act in the 115th Congress (Nov. 17, 2016), available at https://www.fas.org/sgp/crs/misc/major-rules-cra.pdf.
16 5 U.S.C. §804(2).
17 CRS, The Congressional Review Act: Frequently Asked Questions, Report R43992 (Nov. 17, 2016), at 9; see 5 U.S.C. §801(a)(3).
One indication that Congress intends to make use of its CRA authority at the outset of the next Congress is the recent passage by the House of Representatives of an amendment of the CRA that would make it procedurally simpler to disapprove regulations adopted near the end of a presidential administration. Under the CRA as it stands today, Congress must pass a separate joint resolution for each rule it wants to disapprove. On Nov. 17, largely along party lines, the House passed H.R. 5982, the Midnight Rules Relief Act, which would amend the CRA to allow a single joint resolution to be used to disapprove more than one rule. The amendment would thus potentially reduce the committee and floor time required to overturn regulations adopted late in the Obama Administration. 18 Although a likely veto by President Obama means the amendment will almost certainly not be enacted in the current Congress, it could be introduced again at the beginning of the new Congress in January. Enactment of the Midnight Rules Relief Act would presumably require 60 votes in the Senate, but approval of particular joint resolutions of disapproval under the CRA require a simple majority in both chambers. 19
18 H.R. 5982 (114th Cong., 2d Sess.), available at https://www.congress.gov/bill/114th-congress/house-bill/5982/text.
19 “Once a CRA joint resolution of disapproval is reported or discharged from Senate committee, any Senator may make a nondebatable motion to proceed to consider the disapproval resolution. This motion to proceed requires a simple majority for adoption. If the motion to proceed is successful, the CRA disapproval resolution would be subject to up to 10 hours of debate, and then voted upon. A nondebatable motion to limit debate below 10 hours is in order. No amendments are permitted. A CRA disapproval resolution requires a simple majority in order to pass. CRS, The Congressional Review Act: Frequently Asked Questions, Report R43992 (Nov. 17, 2016), at 14.
III. Ongoing Litigation Challenging Final Regulations
Litigation challenging some Obama administration regulations will be ongoing when the Trump administration begins on Jan. 20, 2017. Depending on the status of the case, the new administration could back away from defense of some of those regulations in ways that might lead to their undoing.
Apart from agencies that, by statute, have independent litigating authority 20 , the Attorney General controls litigation on behalf of the United States. 21 If the government has already filed its briefs, changing position could be awkward. But in a number of cases, courts have already begun delaying briefing schedules or entering stays in order to allow the new Administration to define the government's position. 22
20 See, e.g., 12 U.S.C. §5564 (CFPB), 42 U.S.C. §7171 (FERC).
21 See 28 U.S.C. §516.
22 See U.S. courts look ahead to Trump as Obama cases fizzle, Reuters (Dec. 6, 2016), available at http://mobile.reuters.com/article/idUSKBN13V2PQ.
If a district court invalidates an Obama regulation, the Trump administration could choose not to appeal. An interested private party could nonetheless intervene to pursue the appeal. Under Federal Rule of Appellate Procedure 24, courts typically allow intervention as of right based on four considerations: “(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests.” Karsner v. Lothian, 532 F.3d 876, 887 (D.C. Cir. 2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)). 23
23 Denial of a motion to intervene would itself be an appealable order. See, e.g., Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 896 9th Cir. 2011).
Under the new administration, the government could also choose to settle a case to avoid the court's reaching a judgment possibly upholding a regulation promulgated by the Obama Administration. But the settlement would leave the regulation in place. Revision or revocation would still require the issuing agency to undertake a new rulemaking process.
Conclusion
The Trump Administration is likely to follow in its predecessors’ footsteps by trying to delay and undo regulations adopted by the Obama Administration, particularly ones proposed or adopted late in President Obama's second term. Past experience suggests that short delays in effective dates for rules that have not yet taken effect by January 20 are likely to succeed, but substantive revisions or repeals will require fuller rulemaking efforts, action by Congress, or successful challenges in court by regulated parties. 24
24 The House Freedom Caucus has recently released a report identifying regulations its members favor revoking. See House Freedom Caucus, First 100 Days: Rules, Regulations, and Executive Orders to Examine, Revoke, and Issue (Dec. 14, 2016), available at https://meadows.house.gov/first-100-days.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102326844&vname=dennotallissues&fn=102326844&jd=102326844
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EPA Smooths Process for Chemical Restrictions Under New Law
Dec 21, 2016 | BNA Daily Environment Report
By Sam Pearson
The Environmental Protection Agency is moving to cut procedural requirements no longer mandated under the new chemical safety law approved earlier this year.
In a final rule, which is scheduled for publication in the Federal Register Dec. 21, the EPA will change existing regulations from the Toxic Substances Control Act of 1976 that required steps such as holding an informal hearing as part of a rulemaking under section 6 of the law.
An informal hearing is no longer required under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which Congress approved in June, and thus, no longer needs to be included in the regulations, the EPA said.
The agency is also scrapping other old requirements that it make specific findings and publish statements no longer required under the new law. These old regulations “do not facilitate the efficient administrative process envisioned” under the new law, the notice said.
The changes mean that future rulemakings under section 6—which lets the EPA prohibit or place limitations on chemicals if it evaluates the risk and concludes the substance presents an unreasonable risk to human health or the environment—can proceed faster than rulemakings under the old law, a key focus of Congress when it crafted the legislation to fix what was described as a broken chemicals policy.
The rule is not subject to public comment and will take effect immediately upon publication in the Federal Register, the notice said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102326840&vname=dennotallissues&fn=102326840&jd=102326840
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EPA Amends Procedures for TSCA Section 6 Rulemaking
Dec 20, 2016 | The National Law Review
By Bergeson & Campbell, P.C.
The U.S. Environmental Protection Agency (EPA) is scheduled to publish in the December 21, 2016, Federal Register a final rule regarding procedures for rulemaking under Section 6 of the Toxic Substances Control Act (TSCA). Under TSCA Section 6, EPA has the authority to address risks from chemical substances, and Section 6 includes procedures that EPA must follow. As amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, TSCA no longer mandates certain procedural requirements, and this rulemaking removes the regulations specifying those procedures. The final rule will be effective when published in the Federal Register.
The final rule removes 40 C.F.R. Part 750, Subpart A (the general procedural requirements for rulemaking under TSCA Section 6, including the requirement for a hearing). Subpart A detailed hearing-related procedures, as well as the content and timing of EPA’s notices and its record. The final rule also removes similar provisions from the procedural rules in subparts B and C for exemptions from the prohibitions in TSCA Section 6(e) applicable to polychlorinated biphenyls.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act amends many sections of TSCA, including TSCA Section 6. While EPA must take action against unreasonable risks presented by chemical substances or mixtures, its duties under TSCA Section 6 have been significantly modified to include specific deadlines and procedures for prioritizing chemicals for risk evaluations, conducting the risk evaluations, and promulgating regulations to address unreasonable risks that it identifies. EPA states that notably, once unreasonable risks have been identified through a risk evaluation, TSCA Section 6(c)(1) now requires EPA to issue a proposed rule to address the risks no later than one year after the final risk evaluation is published, and the final rule must be issued no later than two years after the final risk evaluation is published, subject to the limited extension authorized by TSCA Section 6(c)(1)(C). According to EPA, after reviewing 40 C.F.R. Part 750 in light of the TSCA amendments, EPA has determined that the procedural regulations in Subpart A “do not facilitate the efficient administrative process envisioned by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.” Subpart A was principally promulgated to provide further details related to the informal hearing process under TSCA as originally enacted. With the statutory amendments’ removal of the informal hearing requirement and addition of “ambitious” deadlines for action under Section 6, EPA states that Subpart A “is particularly outdated and no longer designed for effective implementation of section 6.”
The final rule states that to the extent Subpart A simply reflected administrative requirements of TSCA and the Administrative Procedure Act (APA), new TSCA and APA will continue to apply on their own terms. According to EPA, Section 6 as amended prescribes considerably more procedure than the previous version of TSCA. To the extent Subpart A goes beyond the current statutory requirements, EPA “believes that the layering of additional procedural requirements by regulation is both unnecessary to ensure a transparent rulemaking process with robust public participation and not well-suited to the rapid throughput required by the law. EPA also believes the requirements are in some respects outdated with respect to current technology.”Commentary
The final rule appears to amend the Section 6 procedural requirements such that they align with the amended requirements under new TSCA. While the procedural simplifications in new TSCA were a useful change that should better enable regulatory action on existing chemicals, EPA will need to exercise care in its future rulemaking to meet the procedural requirements that remain in Section 6, as well as satisfy the relevant provisions in Section 26.
http://www.natlawreview.com/article/epa-amends-procedures-tsca-section-6-rulemaking
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Free-Market Group Targets EPA Chemical Programs
Dec 20, 2016 | Inside EPA
A free-market think tank that vigorously opposes EPA rules is urging Congress to address two non-regulatory EPA chemical programs -- the influential Integrated Risk Information System (IRIS) chemical analysis program and the voluntary Safer Choice program that promotes safer chemicals -- which the group says have significant regulatory and market effects.
In a Dec. 20 blog post, CEI's Angela Logomasini says that Congress “can address problems associated with such programs by defunding them or by bringing them under the authority of existing environmental laws.”
Top of the list is IRIS, the chemical risk assessment program that has long faced criticisms from the National Academy of Sciences (NAS), the Government Accountability Office (GAO), industry groups and others. Chief among these was NAS' 2011 review of EPA's draft IRIS assessment of formaldehyde, which in a rare move went beyond its charge to publish an extra chapter addressing a broad critique of IRIS assessments.
Since then, the agency has taken a series of steps intended to address these recommendations, though its productivity in recent years has fallen as a result. The program's limited output has been another critique, largely from GAO. But a 2014 NAS report found the IRIS program has made significant progress on NAS' 2011 recommendations, while urging EPA leaders to continue to implement a new analytical approach, systematic review in the program.
To address the concerns, Logomasini urges lawmakers to move the IRIS program's functions and funding into EPA's new Toxic Substances Control Act (TSCA) program where it will be subject to the law's strict data standards. “Congress could address problems with IRIS by moving its functions and funding into the [TSCA] program at EPA. This action should garner broad support given that the recent TSCA reform law gained overwhelming bipartisan approval in Congress and was signed by President Obama last spring,” she wrote.
“TSCA’s requirements for reliance on 'best available, peer reviewed science' as well as weight of the evidence consideration could make IRIS evaluations more meaningful. In addition, as part of a formal regulatory program, chemical assessments would hopefully be more transparent,” she says.
She is also urging lawmakers to defund the Safer Choice program, which encourages use of safer chemicals, charging it is unnecessarily driving products from the market and forcing product reformulations without regard for potential adverse safety effects.
Logomasani notes that the Safer Choice program's recommendations for eliminating chemicals are based on their “hazard” rather than their “risk,” charging that this represents the potential for danger given specific circumstances and/or exposures.
For example, she notes that this approach has meant that certain flame retardant chemicals have been removed from the marketplace. “Safer Choice is not only and duplicative of other programs, it has adverse and potentially dangerous market impacts. Congress can, and should, defund the program with an appropriations line item that prohibits EPA spending on the Safer Choice program,” she writes.
But such an action could draw opposition from industry groups, including retail giant Walmart, who have successfully urged the agency to expand the program.
https://insideepa.com/daily-feed/toxics-free-market-group-targets-epa-chemical-programs
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Ethylene Oxide Is Carcinogenic If Inhaled, Says US EPA
Dec 21, 2016 | Chemical Watch
The US EPA has issued its final evaluation of ethylene oxide's inhalation carcinogenicity, as part of its Integrated Risk Information System (IRIS) assessment programme.
Ethylene oxide is a chemical intermediate for manufacturing ethylene glycol. It is also widely used to sterilise medical equipment.
The agency characterises ethylene oxide as “carcinogenic to humans” by inhalation, based on weight of evidence. The evaluating team was not able to conclude on carcinogenicity based solely on studies of workers exposed to ethylene oxide. However, adding supporting evidence such as rodent studies gave “high” confidence in the final hazard characterisation.
The evaluation includes an estimated “total cancer unit risk”, with additional risk estimates for occupational inhalation exposure. The figure gives the possible increased cancer risk from inhaling a concentration of 1 microgram ethylene oxide per cubic metre over a lifetime.
For unit risk, the assessment team chose to rely on human evidence rather than animal studies, which would have given far lower estimates. According to the assessment, human data "provide a more appropriate basis than rodent data for estimating population risks, primarily because uncertainties in extrapolating quantitative risks from rodents to humans are avoided.”
The ethylene oxide assessment was already under way when the EPA began implementing recommendations from the National Research Council. As a result, it does not incorporate recent revisions to the IRIS assessment format.
In the EU, there is a harmonised (mandatory) classification for ethylene oxide under the CLP Regulation. This classification includes category !B carcinogen.
Ethylene oxide is also one of 13 carcinogenic substances for which the European Commission has proposed occupational exposure limits (OELs); its suggested OEL is 1.8mg per cubic metre.
https://chemicalwatch.com/51795/ethylene-oxide-is-carcinogenic-if-inhaled-says-us-epa
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Dec 21, 2016 | Chemical Watch
By David Stegon
Health Canada has announced plans to ban asbestos and asbestos-containing products by 2018 through new regulations that outlaw the manufacture, use, import and export of the substances under the Canadian Environmental Protection Act (Cepa).
Along with banning the substance, Health Canada plans to:establish new federal workplace health and safety rules that will drastically limit the risk of people coming into contact with asbestos on the job;expand the current online list of asbestos-containing buildings owned or leased by the Government of Canada;work in collaboration with our provincial and territorial partners to change the national, provincial and territorial building codes to prohibit the use of asbestos in new construction and renovation projects across Canada; andupdate the country’s international position regarding the listing of asbestos as a hazardous material based on Canada's domestic ban before next year's meeting of parties to the UN Rotterdam Convention.
To prepare the new regulations, which Health Canada said it plans to publish in December 2017, the agency has issued a notice to help gather information on the current use of asbestos in manufacturing.
The notice calls on companies that work with any of six different types of asbestos to complete a mandatory survey by 17 January 2017. Once complete, Health Canada will use information from the survey to guide further actions.
The notice applies to companies that use the following forms of asbestos: crocidolite, chrysotile, amosite, actinolite, anthophyllite and tremolite.
Asbestos is currently on Canada’s List of Toxic Substances found in Schedule 1 of Cepa. That listing covers all six types of asbestos, but controls focus primarily on mining and workplace exposure, along with some high-risk consumer products.NGO reaction
Health Canada’s action was largely met with support, although some noted the ban will require additional work from the Canadian government to fully achieve protection for the nation’s citizens.
“The federal announcement to ban asbestos in Canada comes at a crucial time as the health data confirm that deaths from asbestos-related diseases have continued to increase in Canada,” said Fe de Leon, researcher at the Canadian Environmental Law Association (Cela).
Linda Reinstein, president of the Asbestos Disease Awareness Organization, also applauded the measure.
“Canada’s impressively cognizant approach reflects a growing trend among governments of not just banning future use but addressing the lasting legacy of asbestos and especially the continuing exposure danger in our built environment and the need for improved detection and treatment of asbestos diseases,” she said in a released statement.
Ms Rothstein added that Canada's action was an opportunity for the US to follow suit with a full ban. RecogniSing the dangers, the US EPA has recently prioritiSed asbestos for risk assessment and regulatory action.
“With decades of research already completed and bans in more than 55 countries, scientifically and medically speaking, the risk assessment is a forgone conclusion,” she said.
https://chemicalwatch.com/51808/canada-to-ban-asbestos
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Industry Unconcerned About Bisphenol A Classification in EU
Dec 21, 2016 | BNA Daily Environment Report
By Stephen Gardner
A European Union decision to list the widely used chemical bisphenol A as a substance of very high concern under the bloc's REACH regulation should have “no direct implications” for most applications that use the substance, an industry group told Bloomberg BNA Dec. 20.
The European Chemicals Agency (ECHA) said Dec. 19 that its Member State Committee, which consists of representatives from EU countries, had agreed that bisphenol A (BPA) should be listed as a substance of very high concern (SVHC) because of its toxic properties on reproduction. BPA is also suspected of being an endocrine disruptor.
BPA would be formally listed as an SVHC in January 2017, ECHA said.
Designation of a substance as an SVHC triggers obligations for companies that produce the substance or use it in their products and could lead to a ban on use in the EU without a usage-specific authorization.
However, industry federation PlasticsEurope said BPA is primarily used as an intermediate substance “to manufacture polycarbonate and epoxy resin, which are mainly polymeric materials.”
Under REACH, intermediates cannot be made subject to the authorization process, and so the use of BPA “to manufacture polymers would be exempt” from REACH authorization requirements, PlasticsEurope said.
Furthermore, once incorporated into a polymer, “only technically unavoidable trace levels of unreacted bisphenol A may remain in the polymer matrix, usually far below the levels that would trigger SVHC-related communication or documentation obligations,” PlasticsEurope said.
French Proposal
France proposed that BPA be listed as an SVHC under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals), and ECHA ran a public consultation in September and October on the plan.
BPA is already restricted in the EU through limits on its presence in polycarbonate infant feeding bottles. France also proposed a REACH restriction on BPA in thermal paper used in cash register receipts.
Jasmin Bird of PlasticsEurope told Bloomberg BNA that the additional step of the listing of bisphenol A as an SVHC “was expected” because the substance has been classified as reprotoxic, which is one of the triggers for SVHC status under REACH.
ECHA said Dec. 19 that the Member State Committee also approved SVHC status for nonadecafluorodecanoic acid (PFDA) and its sodium and ammonium salts; 4-heptylphenol, branched and linear; and 4-tert-pentylphenol.
The additions would bring the number of chemicals have been designated as SVHCs under REACH to 173. So far, phaseout decisions have been taken for 31 of the SVHCs.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102326835&vname=dennotallissues&fn=102326835&jd=102326835
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Commission Adopts BPA Restriction In Thermal Paper
Dec 21, 2016 | Chemcial Watch
The European Commission has published a Regulation amending Annex XVII - the restricted substances list - to add bisphenol A (BPA).
BPA shall not be placed on the market in thermal paper in a concentration equal to or greater than 0.02% by weight, after 2 January 2020.
In July a committee of member state officials backed France’s proposal for an EU ban.
The Regulation will enter into force on 1 January 2017.
https://chemicalwatch.com/51797/commission-adopts-bpa-restriction-in-thermal-paper
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Echa's Board Of Appeal Supports Request For More Data On Triclosan
Dec 21, 2016 | Chemical Watch
Echa's Board of Appeal has supported the agency in its request for further data on triclosan under the REACH substance evaluation process.
Registrant BASF Grenzach was asked to perform persistence testing in marine and freshwater, a developmental neurotoxicity test with additional elements of an extended one-generation reproductive toxicity study (Eogrts) and a fish sexual development test.
Echa also requested all available information on triclosan's cardiotoxicity. The latter request was annulled.
Triclosan is a broad-spectrum antibacterial, used in toothpaste, soap and other consumer products.
https://chemicalwatch.com/51794/echas-board-of-appeal-supports-request-for-more-data-on-triclosan
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Echa Biocides Committee Backs 16 Substance Approvals
Dec 21, 2016 | Chemical Watch
By Vanessa Zainzinger
Echa’s Biocidal Products Committee adopted 17 opinions that support the approval of active substances for use as disinfectants and preservatives, at its meeting last week.
They are:peracetic acid, generated from tetra-acetylethylenediamine (TAED) and sodium percarbonate, for use in disinfectants and algaecides not intended for direct application to humans or animals (product-type two), veterinary hygiene products (product-type three) and food and feed disinfectants (product-type four);active chlorine, released from sodium hypochlorite, for human hygiene disinfectants (product-type one), drinking water disinfectants (product-type five), as well as product-types two, three, and four;active chlorine, released from calcium hypochlorite, for product-types two, three, four, and five;active chlorine, released from chlorine, for product-types two and five;methylisothiazolinone (MIT) for use in preservatives for liquid-cooling and processing systems (product-type 11); and2-octyl-2H-isothiazol-3-one (OIT) for use in wood preservatives (product-type eight).
The committee decided not to approve the use of the active 2-methyl-1,2-benzisothiazol-3(2H)-one (MBIT) in working or cutting fluid preservatives (product-type 13) because it would pose unacceptable risks for groundwater. The metal-working fluid, released from sewage treatment plants, can end up in sludge spread on agricultural land; some of its non-degradable metabolites could leach into groundwater in volumes above the acceptable limit.
Another use of MBIT – use in preservatives for products during storage (product-type six) – is due to be considered at the committee's next meeting in February. This discussion will be watched closely by paint manufacturers, which are concerned about a shortage of isothiazolinones available for use as in-can preservatives.
Since this use is entirely different to the cutting fluids application, there is no way of anticipating if the February discussion will lead to another non-approval, said Mr van de Plassche.
https://chemicalwatch.com/51809/echa-biocides-committee-backs-16-substance-approvals
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Clientearth Sues Commission Over DEHP Authorisation
Dec 20, 2016 | Chemical Watch
By Clelia Oziel
NGO ClientEarth is taking the European Commission to court over its controversial decision to grant authorisation for uses of the phthalate DEHP in recycled PVC until February 2019.
The case on the REACH authorisation process is the first to go before a court.
ClientEarth said the Commission’s judgement was "deeply flawed" and it is now seeking to have the approvals overturned in the European Court of Justice (ECJ) in February 2017. The move follows the Commission's rejection on 7 December of a request by the environmental law firm to conduct an internal review of its Decision.
It said the Commission’s Decision in June to allow three recyclers - VinyLoop Ferrera, Stena Recycling and Plastic Planet - to use DEHP was a "huge mistake" and put the authorisation process "on the wrong track for cases to come".
“The Commission’s approval of DEHP, despite the companies not submitting information required by law and proof that safe alternatives are available, clearly shows the authorisation process [has] scant regard for the law or people’s health," said ClientEarth chemicals lawyer Alice Bernard.
ClientEarth is using powers granted to NGOs under the UN Aarhus Convention on access to information, public participation in decision making and access to justice in environmental issues, to ask the Commission for an internal review.
But the Commission said in a letter to ClientEarth that the basis for this "has to be dismissed as unfounded" because it had "neither infringed any of the provisions of the REACH Regulation", nor "any of the general principles of law mentioned therein".
The approvals were backed by most member states on the grounds that there were no suitable alternative substances or technologies that were feasible for the three companies, and the socio-economic benefits outweighed the environmental and health risks.Interpreting REACH
ClientEarth, however, is questioning the Commission's interpretation of REACH "on the notion of substitution and conformity of application", Ms Bernard told Chemical Watch.
The Commission "illegally ignored" proof that safer alternatives were available, and approved the use of DEHP even though the plastics recyclers did not show that the benefits to society outweighed the risks, she said. There was also a lack of clear rules to define alternatives.
The Commission considered the Opinions of Echa's Committees on Socio-Economic Analysis (Seac) and Risk Assessment (Rac), adopted in 2014, but "Echa should not be the first to decide whether an application is in conformity," according to Ms Bernard.
She added that gaps were subsequently found in the authorisation files, for example with regard to risk to workers. The Opinions were heavily criticised by NGOs and some MEPs, which prompted Echa head Geert Dancet to defend them.
A consideration of the environmental benefits of recycling may have tipped the balance in favour of authorisation, Ms Bernard said. "We can have a debate on recycling, but the authorisation process is not meant for that," she said.
ClientEarth said the lawsuit could lead to "many more" similar cases in the future.
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Obama Bans New Oil Drilling on Millions of Acres of U.S. Waters
Dec 21, 2016 | BNA Daily Environment Report
By Jennifer A. Dlouhy and Josh Wingrove
President Barack Obama banned new offshore oil and gas development in more than 100 million acres of the U.S. Arctic and undersea canyons in the Atlantic Ocean, an announcement certain to provoke a fight with the Republican-led Congress and his successor in the White House.
In a announcement coordinated between two of the world's biggest oil producers, Canada committed to freeze new offshore leasing in its waters and review the matter every five years.
“These actions, and Canada's parallel actions, protect a sensitive and unique ecosystem that is unlike any other region on Earth,” Obama said in a written statement. “They reflect the scientific assessment that even with the high safety standards that both our countries have put in place, the risks of an oil spill in this region are significant and our ability to clean up from a spill in the region's harsh conditions is limited.“
The move—announced a month before Obama leaves the White House—is sure to draw a legal challenge, and there is scant legal precedent on the matter. President-elect Donald Trump may rescind Obama's order, but the 1953 statute Obama is invoking doesn't include an explicit provision for reversal and that question could be tied up in court for years.
Although Obama's decision was cast primarily as safeguarding 31 ecologically precious Atlantic canyons and “fragile Arctic waters,” it was a major victory for environmental activists who have been arguing that even broader climate change concerns should drive the White House to rule out drilling in mostly untouched U.S. waters. Environmentalists said the decision sends a message to the world that the U.S. knows the warming Earth can't afford to burn “extreme oil” locked under now-protected Arctic and Atlantic waters.
‘A Gift to the Public’
“This is a gift to the public and to our kids that will rank with any in the history of American conservation,” said Niel Lawrence, Alaska director of the Natural Resources Defense Council.
The decision builds on Obama's earlier decision to rule out selling new leases in the Arctic, Atlantic and Pacific from 2017 to 2022. But Tuesday's announcement, based on the so-called 12(a) provision of Outer Continental Shelf Lands Act, is different because it explicitly puts certain areas permanently off limits for oil exploration and production.
The massive underwater canyons in the Atlantic covered by Obama's order were carved by glaciers or are the remnants of rivers that once flowed overland. According to a White House fact sheet, they are home to many species of fish, whales and other aquatic life and have been the subject of scientific exploration for decades.
In the Arctic, Obama is making all of the U.S. Chukchi Sea and the vast majority of U.S. Beaufort Sea waters -- all but 2.8 million acres near the shore -- indefinitely off limits for future oil and gas leasing. Only one parcel in the U.S. Chukchi Sea is still leased -- to Royal Dutch Shell, which drilled there in 2015.
Until now the Outer Continental Shelf Lands Act has been used mostly to permanently preserve coral reefs, walrus feeding grounds and marine sanctuaries, though some presidents have used it more broadly on a temporary basis.
‘Very Little Precedence’
Although presidents have modified decisions made under the act from predecessors, they have never rescinded them altogether. A legal opinion from the U.S. attorney general in 1938 on similar designations under a different law said they “do not imply a power to undo.” And there have been no federal court rulings on the offshore energy statute.
Although oil companies have struggled to tap resources at the top of the globe, industry leaders say they will be needed to meet the world's energy needs. The industry's top trade group, the American Petroleum Institute, cast the idea of permanently withdrawing offshore waters as detrimental to national security.
“Blocking offshore exploration would weaken our national security, destroy good-paying jobs and could make energy less affordable for consumers,” said Erik Milito, an upstream director for the institute.
API, the industry's top trade group, expressed confidence that the Arctic withdrawals would be rolled back by Trump and the Republican-led Congress -- even if the matter is ultimately decided by federal courts.
“There's no case law; there is very little precedent,” said Andy Radford, offshore senior policy adviser at API. “There's a number of avenues to explore to overturn a withdraw.“
Obama's Beaufort Sea withdrawals are not expected to affect drilling or production under existing leases, including 42 parcels that Royal Dutch Shell Plc, Hilcorp Energy Co., Eni Spa, Repsol Sa and other companies own there, according to a government registry last updated in June. It also isn't expected to affect waters under state jurisdiction, including part of the Beaufort Sea where a Texas company recently trumpeted a potential 6 billion barrel discovery.
Trudeau's Agenda
The restriction comes as Canadian Prime Minister Justin Trudeau, who has recently committed to a national carbon price while also approving two new oil pipelines, seeks to raise environmental protections and continue developing the country's energy resources. Canada is home to the world's third-largest proven oil reserves.
Obama and Trudeau have collaborated on Arctic issues before. In March, they pledged to collaborate in managing the Arctic, including taking unspecified “concrete steps” to protect at least 10 percent of its water. Although some oil companies hold exploration rights in Canada's Beaufort waters, no drilling is currently taking place. Activity there is now stalled or uneconomical, said Michael Byers, a University of British Columbia professor.
“Today, President Obama and Prime Minister Trudeau are proud to launch actions ensuring a strong, sustainable and viable Arctic economy and ecosystem,” a joint statement from the two governments said.
The decision drew a rebuke from Northern residents. Bob McLeod, premier of Canada's Northwest Territories, said he was not involved in the decision. He spoke with Trudeau Tuesday and expressed concern about the economic impact the move will have.
“We thought we would have a collaborative relationship when it came to these types of decisions, and we're very concerned,” he said in an interview, adding such decisions should include Northern residents and not be “based on what would play to people in Vancouver, Toronto, Ottawa, what have you.”
The territory will look to the federal government to support other industries if oil and gas development is reined in. “It's a hard place to live. We need good jobs for people to support themselves and their families,” McLeod said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102326849&vname=dennotallissues&fn=102326849&jd=102326849
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How Firefighters Can Train For Hazmat Transport Incidents
Dec 21, 2016 | Fire Chief
By William E. Offerman
Preparedness means a lot of different things depending on who you talk to. For many communities and emergency responders, a critical part of being prepared is being ready to respond to an incident involving hazardous materials.
As we have seen with several high-profile incidents over this past year, being prepared for these types of disasters is extremely important to protecting the people that live in your community.
For me, every day is about helping people be prepared. Over the past year, I have represented the National Volunteer Fire Council on the National TRANSCAER Task Group. TRANSCAER (Transportation Community Awareness and Emergency Response) is a voluntary national outreach effort that focuses on assisting communities to prepare for and respond to a possible hazardous material transportation incident.
TRANSCAER members, including companies that manufacture, distribute, store and transport hazardous materials, provide free training to emergency responders across the country.
NVFC routinely hears from our members that they need better access to training. So, the partnership between TRANSCAER and NVFC is pretty straightforward: they put on training events and we promote the events to the volunteer fire and emergency services.
Anyone in the fire service who is not familiar with TRANSCAER should be. TRANSCAER resources, available at no charge to emergency services personnel, include classroom and hands-on training, emergency planning assistance, support for community drills and exercises, technical information, reference and training materials, and national conferences and workshops for sharing best practices and networking.
To celebrate its 30th anniversary in 2016, TRANSCAER held 70 training events in May on a variety of topics. Those included tank car awareness, advanced tank car specialist, rail safety and hazmat emergency response, ethanol response train the trainer, railway crude by rail response, chlorine emergency response, fire considerations and foam tactics for rail emergency response and methanol safe handling.Getting trained
I attended one of the events in Newark, N.J., held as part of the Dow Chemical North East TRANSCAER training tour.
There, first responders were trained using the new API/Association of American Railroad’s Crude by Rail Safety program, railcar and locomotive anatomy, chlorine emergencies, Indian Springs A, B, C capping kits, Midland capping kit, hands-on leak mitigation and tank truck emergencies.
TRANSCAER’s goal is to provide improved community awareness and emergency preparedness along highly hazardous chemical transportation routes with significantly enhanced outreach, education, and training in coordination with national, regional and state TRANSCAER programs.
The amount of hazardous materials being produced and transported throughout the country has increased dramatically in recent decades. Since 2008, NFPA 1001: Standard for Fire Fighter Professional Qualifications has included hazmat awareness and operations training.
Increasingly, hazardous materials emergency response is becoming a core service provided by fire departments. This presents many challenges, particularly in rural areas where resources are scarce and advanced or specialized training can be difficult to access.
By using TRANSCAER resources, fire departments can train and prepare their members to deal with critical hazardous materials threats facing their community at no-cost to the agency.
Visit TRANSCAER.com to register for a nearby TRANSCER training event.
http://www.firechief.com/2016/12/19/how-firefighters-can-train-for-hazmat-transport-incidents/
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Trump Supporters Favor Maintaining Climate Policy — Poll
Dec 20, 2016 | E&E News PM
By Jennifer Yachnin
Although President-elect Donald Trump vowed to roll back environmental regulations next year — and nominated officials to U.S. EPA and the Energy and Interior departments who appear ready to back his proposals — a poll shows more than half of Trump voters would prefer for climate regulations to remain unchanged.
The survey, conducted by the Glover Park Group for Morning Consult, polled 2,000 voters who said they cast their ballots for the Republican nominee last month.
The Dec. 11-13 survey found strong backing for environmental protections, including 55 percent of those polled who said they support "upholding current climate change policies" when the Trump administration takes office. Only 7 percent of those polled said rolling back environmental regulations should be the "top priority" for the new administration.
The survey also showed 64 percent support for maintaining or increasing the federal budget for environmental protection and conservation.
"Contrary to campaign rhetoric and the Republican platform — the 'Trump voter' is not monolithic. The poll confirms that Americans of all political persuasions value clean air and safe drinking water, support renewable energy, and want regulations that help fight climate change and protect our environment," said GPG Managing Director Catharine Ransom.
Among those polled, even more voters supported regulations targeting air pollution. Seventy-eight percent of Trump voters said they supported air pollution regulations generally, and 61 percent said companies should be required to reduce their carbon emissions.
Similarly, the poll found 76 percent favored mandates requiring energy efficiency standards for appliances and 84 percent support for regulations targeting drinking water.
The poll, which had a 2.2-point margin of error, also found majority support for maintaining or increasing federal spending on renewable energy production, with 73 percent of voters backing the idea.
But echoing the president-elect, those same voters also backed an expansion of fossil fuel production on public lands. Trump has stated that he wants to increase domestic production of coal, oil and natural gas, including on federally owned lands.
Among those polled, 54 percent favored expanding exploration on public lands, while 31 percent of those polled said current limits should remain in place.
http://www.eenews.net/eenewspm/2016/12/20/stories/1060047493
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Shareholder Advocacy on Climate Change Won't Let Up
Dec 21, 2016 | BNA Daily Environment Report
By Andrea Vittorio
Pressure by pension funds, endowments and other large investors for corporate action on climate change is expected to become even more prevalent this proxy season.
“We can assume we're not going to see government leadership on climate change” under the next administration, Edward Kamonjoh, former head of U.S. strategic research and analysis at Institutional Shareholder Services Inc., told Bloomberg BNA.
Given President-elect Donald Trump's skepticism of established climate science, it will be up to shareholders to push companies such as Chevron Corp. and Exxon Mobil Corp. to assess and address business risks from climate change, he said.
Last proxy season, there were about 175 climate-related shareholder resolutions, according to a tally by the sustainability advocacy group Ceres. This season, the total could climb even higher.
Targeting Boards
If investors aren't satisfied with companies’ response to the resolutions and engagement, Kamonjoh said their boards could later be targeted with a director-nomination mechanism called proxy access. Proxy access typically allows a group of up to 20 investors who have collectively held at least 3 percent of outstanding stock for at least three years to nominate a portion of the board.
After decades of corporate resistance to the idea, more than a third of S&P 500 companies have adopted proxy access provisions over the past two years, according to a tally by Ernst & Young LLP. So far, a shareholder has tried only once to nominate a board candidate via proxy access. Gamco Asset Management Inc. withdrew its nominee after its eligibility to use the process was challenged by National Fuel Gas Co.
“Most investors view proxy access as a last resort, if all engagement fails,” Jamie Smith, of EY's Center for Board Matters, said.
In the past, shareholders have tried using resolutions to add an environmental expert to the boards of oil and gas companies, mining companies and electric utilities. Among the top 25 investor-owned utilities in the U.S. by revenue, only three have a board member with discernible climate change expertise, based on an April analysis of board biographies by the Sustainable Investments Institute. Additional research is planned for release in January.
‘Climate Competency.’
“Board accountability is the key to corporate transformation and proxy access is expected to help lessen the inertia by firms, especially in the energy sector, to account for climate change,” said Kamonjoh. He was recently named executive director of a resource and action center called the 50/50 Climate Project that is working with 50 large investors that collectively manage $13 trillion in assets to improve the “climate competency” of boards at 50 carbon-intensive companies.
Getting the right to nominate their own directors on the corporate ballot was one of the 50/50 Climate Project's first priorities when it formed in the fall of 2014. New York City's pension funds led the push, filing 75 shareholder resolutions for proxy access at once. Among the companies targeted were those considered by the city's comptroller to be vulnerable to long-term business risks from climate change, including Chevron and Exxon Mobil.
The 50/50 project is now readying a bench of potential board candidates who are independent and understand climate science.
Proxy access “puts owners into a much more powerful position,” said Anne Simpson, investment director of sustainability at the $300-billion California Public Employees’ Retirement System. CalPERS, another one of the investors involved in the project, recently updated its governance principles to include an expectation for climate expertise on the boards of companies in its stock portfolio.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102326829&vname=dennotallissues&fn=102326829&jd=102326829
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Litigation: Court Delays Ozone NAAQS Argument
Dec 20, 2016 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit, on its own volition, has delayed oral argument in consolidated litigation against EPA's 2015 ozone national ambient air quality standard (NAAQS), which the agency tightened down to 70 parts per billion (ppb) from a level of 75 ppb set in 2008.
The court in a Dec. 19 order gives no reason for the delay -- from Feb. 16 to April 19 -- but the change will give the incoming Trump administration more time to prepare its position on the rule going into argument in the case, Murray Energy Corporation v. EPA, or ask the court to remand the rule for reconsideration.
In the litigation, EPA is defending the standard from efforts by industry and some states that are seeking to scrap the rule. Other states are seeking to defend the NAAQS as amici and environmentalists are seeking to make it even tougher. Several sources suggest the Trump EPA may no longer stand behind the rule, given President-elect Donald Trump's anti-regulatory stance.
The court says it will “normally” announce the panel of judges to hear the case 30 days before argument.
https://insideepa.com/daily-feed/litigation-court-delays-ozone-naaqs-argument
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EPA Drops Bid To Complete ESPS Trading Rules
Dec 20, 2016 | Inside EPA
EPA has decided to drop its effort to craft final model trading rules for its power plant greenhouse gas rule, a sign that the exiting Obama administration recognizes that the incoming Trump administration will likely end its controversial rulemaking effort.
Janet McCabe, EPA's acting air chief, said in a Dec. 19 blog post that the agency is releasing a draft final version of the rule, along with related guidance documents, to help those states and others that may be interested in continuing their efforts to reduce GHGs from the power sector.
“We believe that the work we have done so far may be useful at this time to the states, stakeholders and members of the public who are considering or are already implementing policies and programs that would cut carbon pollution from the power sector,” McCabe wrote.
“These drafts may be especially helpful to states considering the use of emissions trading programs or the expansion of existing trading programs, since one of the chief areas of focus of the draft Model Rules is emissions trading. Similarly, states interested in using or expanding energy efficiency programs might find the material presented in the Evaluation, Measurement & Verification document useful as well,” she said.
While the model rules were not required, the agency was developing them to help states interested in complying with the underlying existing source performance standards (ESPS).
The model trading rules, which EPA proposed alongside the final ESPS last year, serve to offer presumptively approvable trading options for states to incorporate in their own compliance plans. EPA proposed model rules for both the rate-based and mass-based compliance pathways.
We'll have more on EPA's announcement later today . . .
https://insideepa.com/daily-feed/climate-epa-drops-bid-complete-esps-trading-rules
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