Preview Newsletter
ACC AM 12/30/2016
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(ACC Mentioned) Michigan Bans Local Plastic Bag Bans
Dec 29, 2016 | EcoWatch
By Lorraine Chow
Another state has officially banned plastic bag bans—yes, you read that correctly. It is now illegal for local governments in Michigan to enact ordinances that ban or place fees on plastic bags or disposable containers used by stores and restaurants. -
(ACC Mentioned) U.S. Chemicals Management Seen Stronger, But Polarized on Risk
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency now—unlike five years ago—routinely addresses the risks of chemicals in commerce while encouraging the development of safer substitutes, according to an outgoing EPA official. -
EPA's Toxic Risk Review Capacity Report Slated for Release
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
A report in which the Environmental Protection Agency examines its capacity and the resources needed to carry out risk reviews under the amended Toxic Substances Control Act will be released next year, the agency told Bloomberg BNA Dec. 29. -
First-Ever Nanoscale Chemicals Data Collection Rule Imminent
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Industry and environmental health advocates plan to scrutinize a forthcoming final Environmental Protection Agency rule that for the first time would collect available industry information about nanoscale chemicals. -
NYC Meets Goal For Replacing PCB-Contaminated School Lights
Dec 29, 2016 | AP (In The Wall Street Journal)
Federal environmental officials say New York City has met a Dec. 31 deadline for removing light fixtures containing the toxic chemicals known as PCBs from public schools. -
Fate of Five Final Energy Efficiency Rules Could Be Up to Trump
Dec 30, 2016 | BNA Daily Environment Report
By Rebecca Kern
Five final energy efficiency appliance standards issued by the Obama administration Dec. 28 could be undone by the Trump administration due to a new review period. -
The Energy Department Just Issued Five New Regulations That Trump Could Try To Cancel
Dec 29, 2016 | The Washington Post
By Chris Mooney
It’s not over, yet, for Obama era rules, regulations and other consequential decisions — which in recent days have included protecting much of the Arctic and Atlantic from offshore drilling and designating new national monuments. -
U.S. Climate Envoy's Future Uncertain With Paris Pact in Doubt
Dec 30, 2016 | BNA Daily Environment Report
By Dean Scott
President-elect Donald Trump has vowed to back out of the Paris climate deal, but if he does he'll still have some key decisions to make on how the U.S. will interact with other nations on energy and even climate matters. -
The Most Important Pollution Rule You've Never Heard Of
Dec 30, 2016 | The Hill - E2 Wire
By Daniel Cohan
It's the most important air pollution rule you've never heard of. And its benefits to air quality and health could extend far beyond its stated purpose — if it isn't gutted by a Republican-led Congress or Environmental Protection Agency (EPA). -
Tillerson Climate-Change Testimony Set Before Trump Sworn In
Dec 30, 2016 | BNA Daily Environment Report
By Kartikay Mehrotra
Lawyers for teenagers claiming the U.S. government is failing to protect the future environment from global warming plan to question under oath President-elect Donald Trump's pick for secretary of state on his knowledge of climate change. -
Interstate Water Fight Illustrates Pruitt's Hands-Off Approach To Regulations
Dec 29, 2016 | PoliticoPro
By Annie Snider
The hands-off approach to regulation favored by President-elect Donald Trump's pick to run EPA could exacerbate fierce battles between the states over water pollution.
Industry and Association News
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(ACC Mentioned) Michigan Bans Local Plastic Bag Bans
Dec 29, 2016 | EcoWatch
By Lorraine Chow
Another state has officially banned plastic bag bans—yes, you read that correctly. It is now illegal for local governments in Michigan to enact ordinances that ban or place fees on plastic bags or disposable containers used by stores and restaurants.
The bill was signed Wednesday afternoon by Republican Lt. Gov. Brian Calley, as Gov. Rick Snyder is out of the state for the holidays.
Other states that have banned local plastic bag ordinances include Wisconsin, Idaho, Florida and Arizona.
As MLive.com noted, Michigan's new mandate affects Washtenaw County, which wanted to start charging 10 cents for paper and plastic grocery bags in 2017.
Michigan House Rep. Jeff Irwin, D-Ann Arbor, spoke against the bill on the House floor.
"This is a bill that attacks local control," he said.
Jennifer Rigterink of the Michigan Municipal League, which opposed the bill, agreed.
"So, if it's important to a community to look at plastic bags or containers and how that's affecting their community they kind of have their hands tied now and aren't able to do anything about it," Rigterink said during an interview with Michigan Radio.
Washtenaw County Commissioner Jennifer Eyer added that the law "[puts] the priorities of business over the concerns about the environment, and doing what's good for the Despite the opposition, the Republican-sponsored bill passed 52-46 in the House and 25-12 in the Senate. Both chambers are controlled by the GOP. The approved law takes effect in 90 days.
The bill was supported by the Michigan Restaurant Association, which believes that local bans creates a burdensome patchwork of bag laws for retailers.
"With many of our members owning and operating locations across the state, preventing a patchwork approach of additional regulations is imperative to avoid added complexities as it related to day-to-day business operations," Robert O'Meara, the association's vice president of Government Affairs, told MLive.com.
In a post for EcoWatch last year, environmental advocate Laura Turner Seydel warned that outside forces are behind these bans on plastic bag bans.
"Powerful and large special interest lobbying groups are behind these 'ban bans' as well as litigation aimed at already existing bans," she wrote. "Outside interests are funding these efforts to dissuade and dismantle local level legislation. Primary among them is the Progressive Bag Affiliates, funded by the largest plastic bag manufacturers in the country and the American Chemistry Council."
Turner Seydel noted in her post that Americans go through an estimated 100 billion plastic bags annually and at least 12 million barrels of oil are used per year to manufacture them. These one-time-use items are notorious for killing wildlife and polluting our environment.
Still, a number counties and even entire countries are putting their concern for the environment before their convenience and have banned these non-biodegradable menaces.
This past November, California became the first state to impose a statewide plastic bag ban despite heavy opposition from bag makers working with the American Legislative Exchange Council that tried to pass statewide bans on local bag bans.
And, in September, France became the first country to ban plastic silverware, plates and cups.
http://www.ecowatch.com/michigan-bans-plastic-bag-bans-2170224166.html
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(ACC Mentioned) U.S. Chemicals Management Seen Stronger, But Polarized on Risk
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency now—unlike five years ago—routinely addresses the risks of chemicals in commerce while encouraging the development of safer substitutes, according to an outgoing EPA official.
Risk assessment, a central element of chemicals management, has, however, become more polarized than ever, according to a long-serving environmental health researcher who retired from the EPA earlier this year.
A comprehensive chemicals program evaluates existing chemicals to determine whether they pose risks, addresses risks if they are found and spurs the development of new chemicals that solve problems, Jim Jones, outgoing assistant EPA administrator for chemical safety and pollution prevention told Bloomberg BNA in a recent interview.
“Five years ago there was no expectation that EPA was looking at existing chemicals for safety, and we have completely changed that dynamic,” said Jones in his final year-end interview with Bloomberg BNA. Jones, a career civil servant, has worked for nearly 30 years at the EPA. He began to run the agency's chemicals and pesticides offices in 2011 although it took the Senate until 2013 to confirm his nomination by President Obama to lead the offices.
The EPA also worked with consumer-facing companies over the last five years and developed a practical approach to spurring interest in safer chemicals, he said.
Jones said he would like to have done more to bring green chemistry-enabled solutions to market.
Laying the Foundation
The agency began to change the perception that it did not assess existing chemicals in 2012 when it announced its plans to evaluate the risks of 83 chemicals in commerce.
Since 2012, the EPA has completed risk evaluations of five chemicals.
It concluded two chemicals—an ingredient in flame retardants called antimony trioxide and a fragrance ingredient known as 1,3,4,6,7,8-hexahydro-4,6,6,7,8,8,-hexamethylcyclopenta[γ]-2-benzopyran—did not warrant controls.
The agency concluded particular uses of three other chemicals did warrant risk controls. The agency has proposed one regulation while two more proposed rules are under review at the White House Office of Management and Budget.
The chemicals and uses the agency proposed be controlled in some way are: the drycleaning and degreasing uses of trichloroethylene and the paint and coating removal uses of methylene chloride and n-methylpyrrolidone.
The foundation the EPA laid helped change the public's and industry's expectation and shows it could review chemicals in commerce, said Jones who will depart the agency in January.
“Now that's the law of the land,” he said, referring to the amendments made in June to the Toxic Substances Control Act. Those revisions require the agency to evaluate the risks of nearly all chemicals in commerce.
Polarization of Risk Assessment
Jones said the process of assessing risks of chemicals in commerce can be improved, but the five risk assessments the agency has completed meet the amended TSCA's requirements such as being based on the best available science.
However, attorneys and trade associations representing chemical manufacturers have disagreed with that conclusion.
None of the three chemicals the EPA proposes to control should be regulated on the basis of the risk assessments the agency completed, the American Chemistry Council told the agency's Chemical Safety Advisory Committee in May.
W. Caffey Norman, a partner in the Washington, D.C. office of Squire Patton Boggs, voiced a similar opinion in an Insights article he wrote that appeared in Bloomberg BNA in August.
The risk assessment dispute calls to mind comments Ken Olden made in June as he announced his resignation from EPA.
Olden ran an EPA research center that managed the EPA's Integrated Risk Information System (IRIS) program. The IRIS program conducts the first two steps of a risk assessment. It evaluates the hazards of chemicals and the doses at which those hazards may lead to adverse health effects. Those two steps produce risk values used by the EPA's regions and regulatory offices for clean air, clean water, hazardous waste and other regulatory decisions.
Prior to Olden's arrival at EPA in 2012, the IRIS program was criticized for being slow and cumbersome and unclear about why the agency based decisions on some scientific studies but not others. Regulated parties voiced these objections, but so too did EPA scientific advisers, committees convened by the National Academies of Sciences, Engineering, and Medicine and members of Congress.
Olden, a life-long environmental health professional, ran the National Institute of Environmental Health Science and National Toxicology Program prior to joining the EPA. He made numerous reforms to the IRIS program that were commended by the academies in a 2014 report. Still industry representatives continued to complain that IRIS wasn't transparent enough and that the EPA was not implementing the academies’ recommendations.
In his farewell speech Olden said “the polarization in environmental risk assessment is more pronounced now than at any time in my life.”
‘Dickering’ While People Suffer
“Not every technology and every chemical is harmful to the environment or to human health. Likewise not every chemical or technology is safe,” Olden said.
Yet, “many of us operate as if these two extreme views are the only alternatives, and that these are the correct views,” he said.
“Unfortunately this polarized environment is aided and abated by the press,” Olden said. “The press no longer attempts to uncover the facts. They use talking points and press releases handed out by stakeholders, the government, industry, environmental groups.”
“It takes too long to make risk assessment decisions because everyone wants to have a say—in fact not once but several times—and many of you want to have the final say. You can't make a decision that way.
“While we are dickering back and forth the environment is being harmed and people are suffering and dying,” Olden said.
He called for “pragmatists” to wake up and see the corrosive effect polarization has on timely decisions and strive for solutions.
Safer Chemicals
Jones said over the last five years the EPA has developed pragmatic solutions to address chemicals management by working with industry to call attention to safer chemicals.
The agency worked with non-governmental organizations, consumer-facing companies that make recognized household cleaners other products along with their institutional counterparts. Together they rebranded EPA's Design for the Environment program into a more easily recognized Safer Choice program, Jones said.
The agency's Safer Choice program recognizes products made with chemicals that meet specific criteria proving they are among the safest that provide their particular function. Carpet cleaners, car care products, laundry detergents and other products with ingredients proven to meet the criteria can be labeled with one of the family of Safer Choice logos.
The EPA built on that program by releasing and expanding its Safer Chemical Ingredients List, Jones said.
The list identifies chemicals, based on their functional uses, that have met the Safer Choice program's criteria. For example, the chemicals do not cause skin or respiratory allergies nor perturb the body's hormone system.
“I think we've gone a long way on both of those [ends of the spectrum] and have a comprehensive chemicals management program here,” Jones said.
“We've got a lot more acceptance and attention to existing chemicals and ensuring safety while at the same time bringing attention and excitement, in a very practical way, to chemicals that are on the greener end of the spectrum,” he said.
Green Chemistry
The one area where Jones said he would like to have done more involves green chemistry.
The term, green chemistry, is popular and convenient to use, but it's a misnomer, Jones said.
The concept of green chemistry is that the manufacturing process by which a chemical is made or the molecule itself solves problems, he said.
The EPA's annual Presidential Green Chemistry awards recognize manufacturing designs, new manufacturing processes and molecules that bring benefits such as reducing waste water, hazardous waste, greenhouse gases or exhibiting fewer hazards than the manufacturing processes and molecules they could replace, Jones said.
“I wish we had been more effective in the green chemistry space,” Jones said, adding “I wish we'd figured out how to more effectively identify those solutions which we call green chemistry.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702207&vname=dennotallissues&fn=102702207&jd=102702207
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EPA's Toxic Risk Review Capacity Report Slated for Release
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
A report in which the Environmental Protection Agency examines its capacity and the resources needed to carry out risk reviews under the amended Toxic Substances Control Act will be released next year, the agency told Bloomberg BNA Dec. 29.
The report was mandated by TSCA amendments of 2016, which required the EPA by Dec. 19 to report to Congress regarding its capacity to conduct chemical risk evaluations and to issue rules to address unreasonable risks chemicals may pose.
Chemical risk reviews generally take three or more years to complete as they entail extensive literature reviews and analysis.
The amended law also requires the agency to report on its capacity to conduct industry-requested risk evaluations, the likely demand for such requests and the anticipated schedule for accommodating the demand.
Companies, trade associations or other organizations could ask the agency to evaluate a chemical's risks for purposes such as addressing public or divergent state concerns about—and regulatory approaches to control—it. The organization requesting the risk evaluation must pay for that evaluation.
With some exceptions, EPA's final regulations preempt state regulations.
The statute required EPA to transmit its report to Congress by Dec. 19 and every five years thereafter.
Such mandated reports are often, but not always, available to the public.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702216&vname=dennotallissues&fn=102702216&jd=102702216
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First-Ever Nanoscale Chemicals Data Collection Rule Imminent
Dec 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Industry and environmental health advocates plan to scrutinize a forthcoming final Environmental Protection Agency rule that for the first time would collect available industry information about nanoscale chemicals.
The White House Office of Management and Budget cleared the final rule (RIN:2070-AJ54) on Dec. 28 after nearly 11 years of back and forth with EPA and regulatory reviewers.
The EPA will release the final rule after the New Year, the agency told Bloomberg BNA Dec. 29 by e-mail.
Two attorneys representing companies that make and use nanoscale chemicals along with scientists working for environmental organizations that fought for more than 10 years in support of the rule told Bloomberg BNA they are anxious to see the provisions of the rule.
Proposed Rule's Provisions
The proposed rule, released April 6, 2015, (80 Fed. Reg. 18,330) would have:
• defined nanoscale chemicals, or “materials”;
• established a one-time reporting obligation during which companies that make or use nanoscale chemicals would provide the EPA available information they have about their chemical's form, size, shape and other properties; and
• established a 135-day notification requirement triggered by a manufacturer's or processor's use of a new form of a nanoscale chemical.
Rule Said Not Economically Significant
According to OMB, the rule is not economically significant, meaning it is unlikely to have an annual effect on the economy of $100 million or more, but the proposed rule was a “significant regulatory action,” meaning the White House review was needed because it raised “novel legal or policy issues.”
When released, this will be the EPA's first regulation concerning nanoscale chemicals generally. The agency's new chemicals program has allowed hundreds of individual, new nanoengineered molecules to enter commerce.
“At long last, EPA is expected to promulgate its rule to gather risk-relevant information on nanoscale materials,” Richard Denison, lead senior scientist for the Environmental Defense Fund, told Bloomberg BNA. Denison was among three environmental organization officials who resigned from an EPA advisory committee in 2006, saying the committee and agency had been unwilling to consider their proposals on issues such as requiring companies to submit data on nanoscale chemicals.
Rule Has Taken 11 Years
“This rule, significantly scaled back from earlier efforts, comes fully 11 years after it was first called for by a multi-stakeholder EPA advisory group in 2005,” Denison said by e-mail.
Among the many obstacles the rule faced was chemical manufacturers reluctance to voluntarily submit information through a voluntary data-collection effort the EPA made.
“Progress was stymied at every step by myopic opposition coming from both industry and other parts of the federal government, [which] failed to recognize that the biggest threat nanomaterial producers and users face is a government oversight system starved of even a basic understanding of the nature and extent of nanomaterial use and what is known and not known about their potential risks,” he said.“This is a new frontier for reporting—across the board—for nanoscale chemicals,” Martha Marrapese, an attorney with the Washington, D.C., office of Keller and Heckman LLP, told Bloomberg BNA.
By “new frontier,” Marrapese said she referred to the EPA's request for types of information companies may have never previously provided for any kind of chemical.
Data Sought by EPA
The information the EPA would like to obtain—if companies already have it—includes up to 43 physical and chemical properties such as porosity, crystal structure, surface area, surface charge, particle shape, particle size distribution and surface chemical composition.
The EPA proposed to obtain the data from manufacturers, importers and processors simultaneously even though some companies, such as processors, have far less experience providing the agency chemical data, Marrapese said.
In addition, the 135-day notification period the EPA proposed to require for the manufacture or use of a new form of a nanoscale chemical was egregious, she said.
That requirement would have “unreasonably exceeded” the authority Congress gave the EPA under Section 8 of both the original or amended Toxic Substances Control Act, Marrapese said. EPA's proposed rule was based on TSCA Section 8, which provides the agency a variety of authorities it can use to collect chemical data.
Expanded Exemptions?
Companies hope the final rule will expand the types of nanoscale materials exempted from it, Marrapese said.
Jennifer Sass, a senior scientist with the Natural Resources Defense Council, told Bloomberg BNA the council hopes the final rule reduces the proposed exemptions.
“We disagree with EPA's proposal to exclude from the requirements of this rule nanoclays, zinc oxide, and chemical substances manufactured at the nanoscale as part of a film on a surface,” Sass and Elizabeth Crowe, co-director of an environmental justice organization called Coming Clean, told OMB in a Dec. 12 letter.
Lynn Bergeson, managing partner of Bergeson & Campbell, P.C. in Washington, D.C., told Bloomberg BNA she anticipates some of the more vigorously opposed provisions of the proposed rule may be scaled back or eliminated.
This includes the 135-day notification period, she said.
Legal Challenges to Come?
“The big question is, of course, what's in the final rule?” Bergeson said.
Depending upon its scope, any number of entities could be expected to review it, and some may legally challenge it, she said. Nanoscale chemicals are processed by and used in a wide variety of products.
Marrapese said companies may sue if they conclude the agency exceeded its statutory authority.
Bergeson said, “None of these options is a sure thing, and stakeholders need to read the rule and be prepared to comply with it unless and until intervening circumstances dictate otherwise.”
Denison and Sass declined to comment on whether their organizations would consider suing the agency if they find the final regulation deficient.
Public Access to Data Sought
The Environmental Defense Fund is, however, prepared to ensure the agency's information collection efforts are as robust and expeditious as possible and that the public is provided maximum access to risk-relevant information on nanoscale materials that are already in or are about to enter commerce, Denison said.
Sass said public access to the data EPA collects is critical.
Nanoscale chemicals are used in so many products that it's essential that consumers and manufacturers be able to evaluate them, she said.“EPA's rule is an important tool to gather relevant data on nanomaterials to inform hazard assessment, regulatory decisions, and industrial product design and development,” Sass wrote in a recent blog.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702217&vname=dennotallissues&fn=102702217&jd=102702217
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NYC Meets Goal For Replacing PCB-Contaminated School Lights
Dec 29, 2016 | AP (In The Wall Street Journal)
NEW YORK — Federal environmental officials say New York City has met a Dec. 31 deadline for removing light fixtures containing the toxic chemicals known as PCBs from public schools.
The Environmental Protection Agency says removing the fixtures protects children and staff members at 883 school buildings from potentially harmful carcinogens.
The EPA says replacing the aging lights also boosts energy efficiency by 30 to 50 percent.
New York City officials agreed to complete the PCB cleanup by Dec. 31, 2016 after first saying they needed until the end of 2021.
The administration of former Mayor Michael Bloomberg tried to get a federal lawsuit over the timeline for replacing the light fixtures dismissed.
The judge refused to dismiss the lawsuit and the city agreed to the expedited timetable during mediation.
http://www.wsj.com/articles/AP74c4fdd299dc4f2c8a61ef70e2850ab3
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Fate of Five Final Energy Efficiency Rules Could Be Up to Trump
Dec 30, 2016 | BNA Daily Environment Report
By Rebecca Kern
Five final energy efficiency appliance standards issued by the Obama administration Dec. 28 could be undone by the Trump administration due to a new review period.
The Energy Department issued final rules increasing energy efficiency requirements for walk-in coolers, portable air conditioners, commercial boilers and uninterruptible power supplies. Each has a 45-day review period—until Feb. 11, 2017—before it can be published in the Federal Register.
The department also issued a direct final rule upping efficiency for swimming pool pumps, which has a 110-day comment period once it is published in the Federal Register. The rule is likely to appear some time in the next two weeks. These are the final energy efficiency rules the administration plans to issue this year, Joshunda Sanders, a DOE spokeswoman, told Bloomberg BNA Dec. 29.
Trump takes office Jan. 20, and the 45-day review deadline—part of a new rule the agency put in place this year—means all five of the rules will be under the authority of the Energy Department of his administration.
The DOE has finalized nearly 50 new or updated appliance standards since President Barack Obama took office in 2009. They are projected to save consumers a total of $550 billion on energy bills between 2009 and 2030. Efficiency standards have been a cornerstone of the administration's Climate Action Plan goal of reducing carbon emissions by 3 billion metric tons by 2030.
Energy efficiency standards set minimum efficiency requirements to reduce the amount of energy that appliances and equipment use, which leads to reductions of carbon emissions as well as savings for consumers who end up using less electricity to operate the products. The department is required by law to review energy standards for more than 60 regulated products every six years.
‘Uncharted Waters’
The fact that these efficiency rules are under the Trump administration's purview is a concern for Andrew deLaski, executive director of the Appliance Standards Awareness Project, which advocates for stronger energy efficiency standards.
“This is really uncharted waters. I don't think there's ever been a situation where one administration has issued a rule, but yet not published it in the Federal Register,” he told Bloomberg BNA.
The new 45-day review period prior to publication was the result of a lawsuit filed by the Air-Conditioning, Heating and Refrigeration Institute against the agency over a previous version of the walk-in cooler standard. As part of the settlement, the DOE agreed to issue a rule that creates a 45-day review period in which the public can notify the agency of typographical or calculation errors in an energy efficiency rulemaking before it publishes it in final form in the Federal Register. The agency published this error correction rule in August, and it went into effect in September.
However, if the Trump administration's Energy Department doesn't act on publishing these final rules it could face litigation, deLaski noted.
In 2006, the Natural Resources Defense Council filed a lawsuit against the DOE as part of a coalition of 15 states, New York City, and two low-income consumer groups because the agency missed legal deadlines for updating 22 standards, and the coalition was seeking to compel the DOE to clear the backlog. The department settled and agreed to a binding schedule for setting standards for 20 products by 2011, Lauren Urbanek, a senior energy policy advocate at NRDC, told Bloomberg BNA Dec. 29.
Urbanek said the agency would consider another lawsuit against the agency if it doesn't follow statutory deadlines for publishing these energy standards.
“DOE's following the rules that Congress has set, so this is all within DOE's clear authority, they have billions of dollars of benefits for consumers, and it will certainly be something we fight to uphold,” she said.
Large Consumer, Energy Savings
The five final rules would save consumers and businesses between $15 billion and $35 billion over the 30-year lifetime of the products, according to the Energy Department.
Of the five rules, the direct final rule for establishing the first-ever efficiency standards for pool pumps will lead to a greater savings—projected to range from $11 billion to $24 billion over 30 years. Urbanek said the standards will lead to 70 percent reduction in energy savings and could save the average owner of an in-ground pool more than $2,000 over the 4- to 7-year lifetime of the pump.
However, not all groups were satisfied with the latest efficiency standards. The Air-Conditioning, Heating and Refrigeration Institute said it wasn't supportive of the ultimate commercial boiler standard, saying it was based on flawed analyses, Francis Dietz, AHRI spokesman, told Bloomberg BNA Dec. 29. He said his group is concerned that the DOE has pushed the energy efficiency levels so high that the margin of safety to properly vent the products has been reduced significantly, which may compromise the safety of future installations.
DeLaski, on the other hand, said he didn't think the Energy Department was aggressive enough on its commercial boiler standard and its portable air conditioner standard.
Long Bipartisan History
The Energy Department's Appliance and Equipment Standards Program covers approximately 66 products, representing about 90 percent of home energy use, 60 percent of commercial building energy use and 30 percent of industrial energy use.
Efficiency standards have had bipartisan support. Appliance efficiency standards were first signed into law in the Energy Policy and Conservation Act of 1975 under President Gerald Ford, and then the National Appliance Energy Conservation Act of 1987 under President Ronald Reagan.
Under those laws, the Energy Department is required to review and decide whether to issue a proposed energy efficiency standard every six years, with a final rule due every eight years. The laws have since been updated under President George H.W. Bush in 1992 and President George W. Bush in 2005 and 2007 to apply efficiency standards to more products.
So based on past Republican support, a new Republican-controlled White House and Congress could lead to some continued support for energy efficiency standards. Rick Perry, whom Trump has tapped to be energy secretary, has supported water energy conservation standards in the past under a package he signed into law in 2009 as governor or Texas, deLaski said.
Urbanek said she hopes the Trump administration would continue the standards work because besides saving money, they create good-paying jobs.
“We think that these standards are common sense because they are so good to consumers and so good for the environment and the economy too. They create jobs that support American manufacturers who are already being innovative. So we think that this is a win-win for everybody involved,” she said.
Advocating For Changes to Statute
The Association of Home Appliance Manufacturers and the Air-Conditioning, Heating and Refrigeration Institute, which each represent appliance manufacturers, are both pushing for Congress to introduce legislation next year that would change the Energy Policy and Conservation Act of 1975.
The associations are calling for changes including giving the agency flexibility to put a product into a category which has a less restrictive standard.They also advocate requiring DOE to consider the cumulative impact of regulations, transparency around the government models on which standards are based, and mandatory public input prior to proposals being issued.
Standards in Jeopardy
There are provisions in the existing statutes that allow the Energy Department to make standards for products not specifically stipulated in the the law, but that can be issued on a discretionary basis.
Two such first-time energy efficiency standards issued by the Energy Department during the Obama administration are for portable air conditioners, which was just finalized, and commercial fans and blowers, which is still in the early rulemaking process.
Since these two standards won't be finalized under the Obama administration, the Trump administration may not have an incentive to pursue them since they are discretionary and not required under the statute, deLaski said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702219&vname=dennotallissues&fn=102702219&jd=102702219
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The Energy Department Just Issued Five New Regulations That Trump Could Try To Cancel
Dec 29, 2016 | The Washington Post
By Chris Mooney
It’s not over, yet, for Obama era rules, regulations and other consequential decisions — which in recent days have included protecting much of the Arctic and Atlantic from offshore drilling and designating new national monuments.
The Department of Energy also has been busy finishing a sweeping Obama era program of energy efficiency standards touching on everything from electric motors to commercial air conditioners. And on Wednesday it unveiled five more of these standards, or regulations, affecting the following products: portable air conditioners, swimming pool pumps, walk-in coolers and freezers, commercial boilers and, perhaps most obscure of all, uninterruptible power supplies, which keep devices like computers running in the case of power failures.
But as Andrew DeLaski, head of the Appliance Standards Awareness Project, notes, there’s a catch — there’s a 45 day waiting period before these standards can be published in the Federal Register, which effectively means that it will be the Trump administration following through on that process.
“We’re in uncharted territory,” DeLaski said. “I don’t think there’s ever been a situation where an administration has issued a standard, but then not have it published in the Federal Register. Federal Register publication is what makes something signed, sealed, delivered. So not having completed that step I think certainly creates uncertainty.”
Delaski blogged about the new standards, and what could happen to them, noting that none of them is “especially controversial” and that taken together, they would save U.S. consumers between $15 billion and $35 billion in the long run. But nonetheless, he also highlighted that Rick Perry’s Energy Department (assuming Perry is confirmed) could delay or block their formal publication.
For its part, the department said it is simply completing its work.
“The Energy Department continues to develop efficiency standards as directed by law,” said David Friedman, the department’s acting assistant secretary for energy efficiency and renewable energy. “We have actively engaged with industry and other stakeholders, including through collaborations such as negotiated rulemakings, to put in place energy conservation standards that are delivering important utility bill savings and other benefits to American consumers and businesses.”
However, the agency did confirm DeLaski’s analysis. “Because of the 45-day clock for error correction, these will not be published in the Federal Register before January 20,” said Joshunda Sanders, a press secretary at the agency.
The 45-day waiting period is specific to the Energy Department’s appliance standards program, which dates back to the 1975 Energy Policy and Conservation Act and was expanded by subsequent legislation. The wait period exists because of a separate regulation that (yes) was itself published in the Federal Register this year. That regulation notes that Energy Department is not allowed to make a standard less stringent once it has been finalized, so it is important not to make mistakes.
“The central features of the error correction rule are that DOE delays publishing a rule in the Federal Register (for 45 days after posting the rule) to allow for the submission of error correction requests, and that DOE commits to considering properly submitted error correction requests before publishing the rule in the Federal Register,” the agency says.
Some of the new energy efficiency standards, or regulations, are pretty consequential, DeLaski says. The biggest, in terms of the amount of money and energy it could save, is the one involving swimming pool pumps, which is the first of its kind and would save pool owners $400 a year, according to the Appliance Standards Awareness Project. That’s simply because pools use a lot of energy, there are millions of them and the standard would reduce their energy use by 70 percent (for in-ground pools).
“If you have a swimming pool, your pool pump is by far your biggest electricity user,” DeLaski said. The standard would take effect in 2021 and would save consumers $11 billion to $24 billion over 3o years, according to his group.
Meanwhile, the uninterruptible power supply standard, according to an analysis by the Natural Resources Defense Council, will avoid 49 million tons of carbon dioxide emissions and close to a quad (or quadrillion British thermal units) of energy use over 30 years. By way of comparison, in one year, 2011, the United States used about 97 quads.
Francis Dietz, vice president for public affairs at the Air Conditioning, Heating and Refrigeration Institute, said that two of the new standards affect the association’s companies — the ones governing walk-in coolers and boilers — and only one of them was based on a negotiated agreement between industry and the agency.
“The walk-in cooler and freezer rule was negotiated, so we agreed to those levels,” he said. “The boiler rule was not, and we are not particularly happy with the boiler rule, so I’m sure we’ll be very engaged on that.”
While not typically a highly partisan matter, energy efficiency regulations or standards have grown controversial of late. President elect Trump appeared to denounce them in the context of the decision of the Carrier plant to move jobs to Mexico, charging, incorrectly, that the plant had been subject to 53 new federal regulations in the past six years.
“Your unnecessary regulations are going to be gone,” Trump said in Indianapolis on Dec. 1.
But DeLaski noted that energy efficiency regulations have a lot of benefits — they save consumers money — and so he thinks that the new rules might persist.
“There’s a lot of reasons for the Trump administration to let them stay,” he said. “We shall see.”
https://www.washingtonpost.com/news/energy-environment/wp/2016/12/29/the-energy-department-just-issued-five-new-regulations-that-trump-could-try-to-cancel/?utm_term=.bfe392ee2e70
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U.S. Climate Envoy's Future Uncertain With Paris Pact in Doubt
Dec 30, 2016 | BNA Daily Environment Report
By Dean Scott
President-elect Donald Trump has vowed to back out of the Paris climate deal, but if he does he'll still have some key decisions to make on how the U.S. will interact with other nations on energy and even climate matters.
One early casualty could be the climate envoy his predecessor named to put the U.S. front and center in international climate negotiations.
Trump hasn't offered much detail since Election Day on his campaign vow to “cancel” the Paris Agreement and roll back domestic climate rules, though he has promised a quick decision on the climate pact after taking office in January. But environmental groups as well as former Obama and Bush administration officials said even a Paris withdrawal won't negate the need to address the complexities of climate and energy diplomacy, given that more than 190 nations would presumably remain committed to the climate accord.
One option for Trump would be to shift the responsibilities away from President Barack Obama's climate envoy—the U.S. point person for United Nations climate talks for the past eight years—to elsewhere in the State Department. Another option: move most of these diplomatic efforts to more direct White House control, as was done under former President George W. Bush.
Bush's approach brought coordination of international and domestic climate efforts under the chairman of the White House Council on Environmental Quality, the president's top environmental adviser. Jim Connaughton, who served as Bush's CEQ chairman during both terms of his presidency, said it is crucial for Trump to continue to engage on climate and energy diplomacy regardless of the president-elect's verdict on the 2015 Paris Agreement.
First to Ratify Treaty
Connaughton told Bloomberg BNA that he remains skeptical of talk that Trump will go even further and pull the U.S. out of the pact's parent treaty, the UN Framework Convention on Climate Change, which the Senate unanimously ratified in 1992. The U.S. was the first industrialized nation to ratify the climate treaty.
“The only thing that Trump said during the campaign was that Paris was a problem, and I just haven't heard boo about the UNFCCC” being seriously considered for withdrawal, said Connaughton, who is frequently mentioned as a contender for various energy and environmental roles in the Trump administration.
The UN climate convention “is a ratified treaty, one [approved] by a substantial Senate majority,” and “participation in that exercise is something that we have committed to for nearly 25 years,” Connaughton said.
Scrapping the UN framework convention would avoid the four-year wait required for the U.S. to withdraw from the Paris pact; pulling out of the 1992 treaty would take only one year and would take the Paris pact down with it. But scrapping a Senate-ratified treaty “would be a big break ... a huge break” from climate diplomacy spanning the last four U.S. presidencies, Connaughton said.
More White House Control?
Beyond his threat to cancel the 2015 Paris climate deal, Trump has called climate change a hoax and warned that such international commitments would put the U.S. at a competitive disadvantage to China.
But the climate issue is interwoven in an array of diplomatic relationships and agreements beyond the Paris deal, including bilateral talks with rapidly developing nations such as China and India and interactions with other nations, such as at Group of Seven and Group of 20 summits.
Moving U.S. climate diplomacy away from the State Department to more direct control under the White House has its own complications. It may not sit well, for starters, with Trump's pick for secretary of state, ExxonMobil Corp. Chief Executive Officer Rex Tillerson.Heather Zichal, a former White House adviser on climate to Obama, told Bloomberg BNA that Tillerson, who some see as comparatively moderate on climate given his statements accepting the role humans play in altering the Earth's climate, presumably would resist such a transfer of power.
Climate Science Commitment Questioned
Zichal is skeptical of Tillerson's commitment to climate science, saying it is impossible to ignore allegations by Senate Democrats, environmental groups and others that ExxonMobil spent decades undermining climate researchers even as its own internal research acknowledged links between human activity and climate change as early as 1981.
Under former President Bush, “Connaughton was able to drive a lot” of the climate agenda “because he was empowered by the president to manage and go make it happen,” Zichal said.
“I struggle to see how a former CEO of Exxon,” which has spent a lot of time funding climate deniers, is “going to be happy outsourcing the power to CEQ going forward,” she said.
Obama, in contrast to Bush's more centralized approach, delegated much of the U.S. negotiating authority in the UN climate talks to Todd Stern, a former Clinton administration negotiator who was awarded the new title of U.S. special envoy for climate change.
But over the course of the past eight years, Obama also drew from “a very tight-knit team” elsewhere on international climate matters, from Secretary of State John Kerry and others at the State Department to various advisers at the White House and the National Security Council.
Paris Deal: Now What?
A U.S. withdrawal from the Paris pact could well spell the end for the special climate envoy office, which was announced in 2009 by then-Secretary of State Hillary Clinton to signal the U.S. return to the table for a truly global climate deal.
Stern, who negotiated for the U.S. in Kyoto Protocol talks in the 1990s, stayed in the climate envoy job for Obama for the nearly seven years it took to clinch the 2015 climate deal in Paris, the first to commit developed and developing nations alike to addressing the climate issue.
Stern departed the envoy post in the spring, handing the baton to former Energy Department official Jonathan Pershing, who has since led efforts to implement a climate deal that nations speedily entered into force in less than a year.
Christo Artusio, who has worked international climate issues at the State Department since the earliest days of President George W. Bush, said the incoming administration has yet to signal whether it plans to retain the special climate envoy office.
Structure in Question
“In terms of the structure, I obviously have no idea of how the new administration will [organize] things, or if it will use the special envoy or some other arrangement” for such diplomacy, Artusio, who heads the State Department's Office of Global Change, said at a Dec. 12 Environmental & Energy Study Institute forum.
A State Department spokeswoman said this week that there is no sign the incoming president-elect has begun wrestling with how to navigate international climate and energy diplomacy.
“No indication as of yet on our end,“ she said.
Options Abound for Reshuffling
Former Obama administration officials argue that whether Trump continues to use a climate envoy or not won't matter much if he essentially ends U.S. negotiations on the matter.
“There are a number of ways to structure” climate diplomacy going forward, “but how you structure it is less critical than what posture the [next] administration takes toward climate change and international commitments,” said Nat Keohane, a former White House special assistant for energy and environment who worked in Obama's National Economic Council and Domestic Policy Council.
“The key is making sure you have someone in that role empowered” to fully negotiate on behalf of the U.S., said Keohane, now the Environmental Defense Fund's vice president for international climate.
Stern's position, which was elevated to the ministerial level to put him on par with the top negotiators from China and other key nations at the negotiating table, ensured the envoy was “speaking for the U.S. as well as the president on the issue,” which was critical to clinching the Paris deal, Keohane said.
Need for Climate Envoy?
But even without Trump's victory in November, there would have been the question of whether the climate envoy position should live on, Keohane said, given that its reason for existence—getting the Paris climate pact done—had been accomplished.
“Now, is that as necessary going forward? I'm not sure it is,” Keohane said, adding that an argument could be made for moving implementation issues outside the State Department to the Treasury Department, for example, given how central international climate funding is to the Paris deal's implementation.
“Seeing it through—that could well be done for Paris with another structure, perhaps integrated more with economic policy at home,” he said. But those different approaches would require Trump to actually want to implement the Paris pact, Keohane noted, which at the moment appears to be a long shot.
Move to ‘E Team?’
Connaughton, the former Bush official, said there are several alternatives that Trump could consider, including keeping climate and energy negotiations mostly within the State Department, for example, but under the direction of an undersecretary rather than within the special envoy's office. That is reminiscent of Bush's approach; he relied on Paula Dobriansky, then-undersecretary of state for democracy and global affairs, to head the U.S. negotiating team at the UNFCCC talks.
“If you wanted to look traditionally and conventionally, the Trump people [could] restore the climate office under” the global affairs undersecretary and mirror Bush's approach, Connaughton said.
“That would be a perfectly understandable and acceptable organizational change and should generate no meaningful criticism,” he said, but “undoubtedly would” anger environmental and other groups that would view any change as hostile to continued U.S. commitment to climate action.
A “more interesting” idea, he said, would be to reshuffle the climate issues to the State Department's “E team,” formally, the Office of the Undersecretary for Economic Growth, Energy, and the Environment. In 2011, the office was elevated to oversee multiple State Department bureaus, including the Bureau of Oceans and International Environmental and Scientific Affairs, the Bureau of Energy Resources and the Office of the Science and Technology Adviser.
“Implementation of Paris is a subject matter arguably more relevant to that E division,” Connaughton said. “Because at the end of the day, climate change implementation is energy, transport, land management—subjects core to the E Bureau.”
Wary of Prejudging an Administration
Artusio, the State Department office of global change official, said it's far too early to assume that Trump's election will bring about a full-fledged U.S. retreat from the global climate stage.
The same was said of President George W. Bush, Artusio said, even though his administration's views and policies evolved over time: Bush campaigned to regulate carbon dioxide, for example. He also reversed himself in early 2001 and disavowed regulating carbon; within weeks he essentially withdrew the U.S. from the Kyoto Protocol.
The international backlash that followed prompted his administration to spend a year developing a climate action plan that called for cutting U.S. greenhouse gas intensity—essentially the ratio of emissions for each unit of economic output. The Bush administration, which still had little use for United Nations climate talks that bogged down year after year, would go on to launch partnerships and talks with small groups of countries, from the 2004 Methane to Markets Partnership to the 2006 Asia-Pacific Partnership on Clean Development and Climate.
In 2007, Bush launched the Major Economies Meeting on Energy Security and Climate Change, a summit of the world's major emitters. Obama essentially rebranded it the Major Economies Forum on Energy and Climate, which was used to move developing and developed nations closer to a global climate deal.
“I think it is fair to say that policy approach of the Bush administration changed over those eight years, just as the approach of the Obama administration changed over the last eight years as well,” Artusio said. “This speaks to the point of not prejudging an administration when it comes in.”Retrenchment Poses Worse Threat Today
But environmental and other groups that hailed the Paris Agreement as a historic first step toward curbing greenhouse gas emissions and addressing climate impacts said there is far more at stake today than when Bush left office.
Withdrawing the U.S. from a deal between nearly 200 nations—one that was developed in large part to address concerns voiced by the Bush and Obama administrations—could threaten to unravel the global deal in years to come, they said. The Paris Agreement includes China, India and other rapidly developing nations, which the U.S. insisted it should, and relies on pledges and not binding emissions reduction targets, mandatory cuts the U.S. also resisted.
But environmental groups said the world doesn't have the luxury to wait another eight years for the U.S. to resume its leadership role on the international climate stage, citing increasingly worrisome reports from scientists suggesting the Earth is warming and sea levels are rising faster than earlier predicted.
“We've been to this rodeo before, but the bull is bigger,” said Alden Meyer, who tracks the UN climate negotiations for the Union of Concerned Scientists.
Temperature Rises Expected
Even with the Paris climate pact, the world is on track to see temperatures rise this century between 2.9 degrees and 3.4 degrees Celsius (between 5.2 degrees and 6.1 degrees Fahrenheit), according to a November report by the UN Environment Program.
Meyer said he is skeptical that Trump will ultimately leave the Paris deal untouched. But he is hopeful the president-elect might yet be persuaded by world leaders to reverse course when they meet at key world summits in early 2017: the G-7 meeting of top industrialized nations in Italy in May and the G-20 meeting in Germany in July.
Those, as well as preparatory ministerial meetings held beforehand, “will be early tests of that interaction,” said Meyer, the UCS's director of strategy and policy.
Twenty years ago, Meyer said, President Bill Clinton wasn't viewed by other world leaders, including German Chancellor Helmut Kohl and U..K Prime Minister Tony Blair, as particularly committed to the climate challenge. Then came the U.S.-hosted Group of Eight summit in Denver in 1997.
Clinton Put Stern on Case
There, the other leaders urged Clinton to join in addressing climate change “as a threat of the highest order,” Meyer said.
Clinton's response? He soon after put Todd Stern, later to resurface as Obama's special climate envoy but then a White House adviser to Clinton, “on the case in the run-up to the Kyoto summit,” Meyer said, which produced the 1997 climate protocol.
“Now, whether the summits next year will be an education process for Trump the way the Denver summit was an educational process for Bill Clinton—well, we can only hope,” Meyer said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702212&vname=dennotallissues&fn=102702212&jd=102702212
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The Most Important Pollution Rule You've Never Heard Of
Dec 30, 2016 | The Hill - E2 Wire
By Daniel Cohan
It's the most important air pollution rule you've never heard of. And its benefits to air quality and health could extend far beyond its stated purpose — if it isn't gutted by a Republican-led Congress or Environmental Protection Agency (EPA).
Despite its obscurity, the Regional Haze Rule is nothing new. It was issued by EPA in 1999, and updated under President George W. Bush in 2004. In fact, I worked on the early stages of a regional haze plan for Georgia over a decade ago as a fresh-out-of-grad-school hiree.
The rule aims to improve visibility at 156 national parks and wilderness areas nationwide. That includes making the Great Smoky Mountains a little less smoky, and protecting Guadalupe Mountains and Big Bend National Park here in Texas and the Wichita Mountains Wilderness in Oklahoma. Clearer skies are welcomed by outdoor enthusiasts like me who enjoy hiking, kayaking and other pursuits in our nation's most scenic areas.
Clearing the haze also protects the health of millions of Americans who may never visit those sites. That's because the same pollutant that causes haze —fine particulate matter — is also the deadliest air pollutant. Since pollution transcends boundaries, cleaner air in our national parks means cleaner air for all of us to breathe.
Like most Clean Air Act provisions, the haze rule tasks states with developing control plans and EPA with approving them. Most states are already benefitting from cleaner air under EPA approved plans. For example, in Georgia, all the largest coal power plants have installed scrubbers or converted to natural gas. Controls like these have contributed to sharp declines in sulfur dioxide and particulate matterthroughout the eastern United States.
However, Texas and Oklahoma issued plans that EPA found to be inadequate, prompting EPA to issue its own plans for the states. In Oklahoma, it was Attorney General Scott Pruitt (R) who sued the EPA to block its tougher plan. Pruitt lost his case, but now has been nominated by President-elect Donald Trump to lead the agency he sued.
Despite Pruitt's lawsuit, Oklahoma utilities are acting to clean up their power plants. Oklahoma Gas and Electric is converting the state's largest coal plant to natural gas and adding scrubbers to another. The Public Service Company of Oklahoma chose instead to close its coal plant.
Here in Texas, prospects for cleaning up our dirtiest coal plants are, well, up in the air. Our own attorney general convinced the Fifth Circuit Court to block EPA's haze plan for the state. However, that ruling didn't negate the need for the state's oldest plants to install what's known as Best Available Retrofit Technologies.
Earlier this month, the EPA specified what those technologies should achieve at Texas power plants. The EPA's proposal would require new or improved controls at nine of the state's highest emitting coal plants.
Those coal plants, each at least four decades old, are why Texas leads the nation in sulfur emissions. By my calculations, meeting the EPA's limits at those nine plants alone would cut power plant emissions statewide by more than half. In fact, unscrubbed coal plants emit 20 times the sulfur of plants with modern controls.
Those sulfur emissions are leading contributors to both the haze that clouds our scenic areas, and the particulate matter that harms our health. That's why the health benefits of cleaning up sulfur pollution are typically over 10 times the costs.
Though scrubber costs are dwarfed by their health benefits, they can provide a tipping point to accelerate coal closures. Economists estimatethat most Texas coal plants are unprofitable even without modern controls, as cheap natural gas and wind push down power prices statewide.
The Texas grid operator ERCOT is already preparing to ensure power reliability is maintained as coal plants close, and expects solar will replace most of the retiring coal. The Brattle Group projects that coal may fall to 6 percent of Texas electricity by 2035. Shifting from coal to solar means avoiding not just sulfur but also smog-forming nitrogen oxides, planet-warming carbon dioxide, and intense water use and pollution.
Those benefits are now in jeopardy under the new administration. One scenario would be for a Pruitt-led EPA to withdraw its proposed rule for Texas. However, that would be certain to prompt lawsuits from environmental groups, since the EPA applied routine modeling and proposed sulfur limits consistent with those required in other states.
The greater risk is that Republicans in Congress may seek to scrap the Regional Haze Rule entirely. The rule is among over 200 regulationstargeted by the House Freedom Caucus, including energy efficiency standards, water protections, and limits on nitrogen, sulfur and ozone pollution. The air quality limits are in earlier stages of being achieved than the haze rule, and are thus more vulnerable to withdrawal.
For all the attention on whether Trump and fellow Republicans accept climate science, the Freedom Caucus hit list reminds us that air quality, water quality, energy efficiency and health are also at risk from politicians hostile to environmental protections.
The Regional Haze Rule is just one of the many fronts on which battles will be waged in the quest for clearer, cleaner air and a healthier environment.
Daniel Cohan is associate professor of civil and environmental engineering at Rice University.
http://thehill.com/blogs/pundits-blog/energy-environment/312138-the-most-important-pollution-rule-youve-never-heard-of
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Tillerson Climate-Change Testimony Set Before Trump Sworn In
Dec 30, 2016 | BNA Daily Environment Report
By Kartikay Mehrotra
Lawyers for teenagers claiming the U.S. government is failing to protect the future environment from global warming plan to question under oath President-elect Donald Trump's pick for secretary of state on his knowledge of climate change.
ExxonMobil Corp. Chief Executive Officer Rex Tillerson's testimony, set for the day before the Jan. 20 inauguration, is being sought by lawyers representing 21 children and teenagers seeking to prove that oil and gas industry groups “have known about the dangers of climate change since the 1960s and have successfully worked to prevent the government” from taking action.
The groups, whose members include Exxon, joined the lawsuit on the side of the government to oppose the teens.
The youths from across the country claim that by perpetuating the use of fossil fuels, the government has trampled their constitutional rights to life, liberty and property. They won a shot at pursuing their claims in November when an Oregon federal judge rejected the government's request to throw out their lawsuit.
Tillerson, who was a director and recent chairman-elect of the American Petroleum Institute, would be asked about his company Exxon Mobil and industry contributing to global environmental damage, lawyers for the teenagers said Dec. 29 in a statement.
One of Exxon's senior scientists noted in 1977—11 years before a NASA scientist sounded the alarm about global warming during congressional testimony—that “the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.”
‘Future Generations’
“Rex Tillerson is one of the most knowledgeable executives in the fossil fuel world on the role of his industry alongside our federal government in causing climate change and endangering my youth plaintiffs and all future generations,” Julia Olson, attorney for the plaintiffs, said in the statement. “We intend to use his deposition to uncover his and others’ culpability, on behalf of these defendants.”
David Buente, an attorney representing the three trade groups in the case, said they received the notice for the deposition on Dec. 28. He declined to comment further.
Attorneys for the teens said Tillerson is a “key witness” whose immediate testimony is critical to their case. They said they're preparing for his attorneys to make attempts to block the scheduled deposition.
Exxon this year sued New York State Attorney General Eric Schneiderman to stop his investigation into what the company knew about climate change, claiming the probe was politically motivated. Massachusetts, New York and other states are investigating whether Exxon violated securities laws and consumer-protection rules by withholding information allegedly obtained as early as the 1970s that man-made emissions were changing the climate.
Assets Value
Schneiderman separately sued Exxon, claiming the company failed to comply with a demand for records about the effect of climate change on the value of its assets.
Tillerson is preparing for his congressional confirmation hearing for secretary of state, a role in which he could play a role in whether the climate accord forged in Paris last year survives.
While Trump has spoken out in ardent opposition to the pact and its emissions reduction pledges, Tillerson and Exxon publicly pivoted on their position on climate change as early as 2013, calling it a “serious risk” in an interview with Charlie Rose.
It's clear that there is an impact of carbon dioxide emissions, Tillerson said then. “What's not clear is our ability to measure with a great degree of accuracy or certainty exactly how large that impact will be,” he said.
There is, however, some skepticism of Tillerson's commitment to climate science, with allegations from Senate Democrats and environmentalists that ExxonMobil spent more than 20 years undermining climate researchers even as its own research acknowledged links between human activity and the earth's warming as early as 1981.
Tillerson had said in an October speech at the annual Oil and Money conference in London that climate change warrants “thoughtful action” but he has argued that more research is needed to determine what actions countries should take. He cited the Paris agreement as a tool for the world to work together to “mitigate greenhouse gas emissions.”
The case is Juliana v. U.S., 15-cv-01517, U.S. District Court, District of Oregon (Eugene) (8/12/2015).
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=102702220&vname=dennotallissues&fn=102702220&jd=102702220
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Interstate Water Fight Illustrates Pruitt's Hands-Off Approach To Regulations
Dec 29, 2016 | PoliticoPro
By Annie Snider
The hands-off approach to regulation favored by President-elect Donald Trump's pick to run EPA could exacerbate fierce battles between the states over water pollution.
Oklahoma Attorney General Scott Pruitt has first-hand experience with such fights from his time in the Sooner State. When he took the AG's office in 2011, he inherited a long-running battle with neighboring Arkansas over water pollution on Oklahoma’s prized Illinois River.
Pruitt was a late entrant to the fight with Arkansas, which dates to the late 1980s, and environmentalists say his decision to negotiate with the state’s upstream neighbor even when it had the legal upper hand delayed protections that should have been implemented years earlier.
Trump and Pruitt have vowed to put states in the driver’s seat for environmental regulation. But that leaves open questions about how their federal regulators will handle disagreements between states over pollution that crosses borders.
Now, a 1991 Supreme Court decision in that fight could offer a road map for states from the Chesapeake Bay to the Great Lakes looking for ways to stanch upstreamfarm runoff, treated sewage and polluted stormwater overwhelming 40 percent of the nation’s waterways.
Pruitt has sued EPA over a number of regulations he calls “federal overreach,” but also says he sees a role for the agency in mediating disputes between states over air or water pollution.
"There are issues with respect to clean water and air that cross state lines," he said in a 2013 speech in Oklahoma, according to CNN. "There is a role, and I think it's important for conservatives, for us to recognize, that though I don't like the EPA ... I think it's not good for us to say that the EPA doesn't have any role."
But when Pruitt inherited the water fight with Arkansas, he was loathe to turn to EPA for help. Instead, he opted to collaborate with state and industry officials across the border, an approach that took more time but secured buy-in from the entities that ultimately needed to reduce pollution into the river.
The Illinois River is one of five "wild and scenic" rivers in Oklahoma that flows in from Arkansas. When nutrient-fed algae blooms began regularly fouling the formerly pristine water in the late 1980s, Oklahomans pointed the finger at theexpansive chicken farms and sprawling development just across the border.
That fight came to a head in a lawsuit over a Fayetteville, Ark., wastewater treatment plant's discharge permit that made its way to the Supreme Court in 1991, with states from Connecticut to Colorado weighing in to defend their upstream or downstream interests. While justices upheld the permit at issue, the precedent they set ultimately delivered a long-term win for downstream states: declaring that EPA cannot approve a permit that would violate downstream states’ water quality standards.
Motivated by the decision, Oklahoma set a strict new water quality limit for total phosphorus in the river — .037 milligrams per liter — to which Arkansas fiercely objected. The two states then agreed to delay implementation of the Oklahoma standard until 2012 in exchange for Arkansas wastewater treatment plants installing pricey upgrades to staunch phosphorus discharges.
But when the pact expired in 2012, Arkansas still wasn’t ready to accept the strict standard, and Pruitt, who had recently come into office as attorney general, headed to the negotiating table. He agreed to another three-year delay to allow for an independent study of the science behind the standard. Environmentalists had hoped that their attorney general would stand strong and “face Arkansas down,” and questioned whether he was motivated by campaign donations from the agriculture industry and companies like Wal-Mart across the border whose growth would be affected by the stricter standard.
“It was delay, delay, delay; study, study, study,” said Ed Brocksmith, co-founder of Save the Illinois River.
But just last week, the study’s authors reported their results, upholding Oklahoma’s standard. The conclusion is being hailed as a win-win on the Oklahoma side of the border, having headed off a prolonged legal wrangle while defending the state’s stricter standard.
Meanwhile, a second water quality suit filed by Pruitt’s predecessor, Democratic Attorney General Drew Edmondson, against 14 upstream Arkansas poultry companies remains in limbo. Filed in 2005, the federal district court judge has yet to issue a ruling — a fact that has kept Pruitt from having to wade into the issue.
Now, as Pruitt promises to shrink EPA's role across the country, the Oklahoma-Arkansas feud offers a guide to other downstream states fighting their neighbors over water pollution.
Ground zero will be the Chesapeake Bay, where the Obama administration has launched a landmark cleanup plan in collaboration with the six bay states and the District of Columbia that make up the ailing, 64,000-square mile watershed.
Pruitt joined 20 other state attorneys general, agricultural groups and real estate developers on a lawsuit aiming to overturn the novel cleanup plan in court, but they lost in federal district and appellate courts, and the Supreme Court this winter declined to hear the case.
Despite Pruitt’s opposition to the plan, Don Parrish, senior director of regulatory affairs at the Farm Bureau, said he expects the framework, known as a total maximum daily load, will remain in place. “I just don’t see the Bay TMDL going away,” he said.
But even if the cleanup plan remains, it could still fail to significantly reduce pollution flowing to the Chesapeake Bay if EPA steps back from its role in holding states accountable for their cleanup commitments.
“You need somebody like EPA coming together and knocking heads. And if EPA doesn’t do that, it will falter. This isn’t easy or cheap,” said Pat Parenteau, a professor at Vermont Law School.
One of the trickiest parts of implementing the Chesapeake Bay plan is stanching farm runoff, a major source of water pollution over which EPA has limited control under the Clean Water Act. The Obama administration found a way to prod states to do more after Pennsylvania in 2012 fell behind on its goals for reducing agricultural runoff: EPA started objecting to permits for the states’ wastewater treatment plants.
Jamison Colburn, a law professor at Penn State Law and former EPA litigator, called the move a “master stroke” by EPA — and one that environmental groups and downstream states can learn from.
“As soon as EPA started objecting to [municipal wastewater plant] permits and saying these permits are going to be the only target in the Chesapeake Bay watershed if you, Pennsylvania, don’t start doing something on nonpoint sources, Pennsylvania’s Department of Environmental Protection all of a sudden got religion,” he said.
And when local city officials realized how much the upgrades to their plants would cost, they turned into advocates themselves. “Those municipal officials turn into really squeaky wheels really quickly,” Colburn said.
Thanks in part to the Arkansas v. Oklahoma decision, that approach could continue, even if Pruitt dials back EPA's role. Downstream states and environmental groups can themselves object to wastewater treatment plant permits, and the Supreme Court decision gives them leverage anywhere that water quality standards aren’t being met.
It’s an approach that may lack the grandiosity of a sweeping new plan, but Colburn said that could also make it more formidable.
“The decentralization of that effort makes it that much harder for your opponent to obstruct it,” he said.
But the approach hinges on numeric water quality standards that set a hard number for pollution limits, rather than a qualitative description of how healthy waters should be, so it has limited reach beyond the Chesapeake Bay. Industry groups have fiercely opposed numeric criteria, and after a lengthy, bloody battle over the issue in Florida, the Obama administration’s EPA has been loath to take on major new ones.
In the Mississippi River watershed, where so much nutrient pollution washes off of farm fields and suburban parking lots, it regularly spawns a dead zone the size of Connecticut, the Obama administration has fought a lawsuit from environmentalists seeking numeric nutrient criteria. The agency says setting numeric standards for the massive watershed would be too costly and burdensome, and prefers to stick with the voluntary approach to reducing pollution. A federal district judge earlier this month sided with EPA, saying that even though the agency’s current approach has proved fruitless, it is up to the agency to decide whether to switch approaches.
“Presumably, there is a point in time at which the agency will have abused its great discretion by refusing to concede that the current approach … is simply not going to work,” wrote U.S. District Court Judge Jay Zainey in New Orleans. But for now, “EPA is entitled to judgment as a matter of law in its favor.”
https://www.politicopro.com/energy/story/2016/12/interstate-water-fight-illustrates-pruitts-hands-off-approach-to-regulations-141531
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