Preview Newsletter
ACC AM 2/3/17
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Suspended Committee Rules Don't Merit Pruitt Challenge: Carper
Feb 3, 2017 | BNA Daily Environment Report
By Brian Dabbs
Suspended committee rules used to advance the nomination of Scott Pruitt as EPA administrator probably don't merit a technical challenge on the Senate floor, the leading Democrat in the uphill battle to derail the nominee, Sen. Tom Carper (D-Del.), told Bloomberg BNA. -
Children's Total Chemical Exposure Crucial, EPA Advisers Say
Feb 3, 2017 | BNA Daily Environment Report
By Pat Rizzuto
The EPA should assess children's total exposure to chemicals as it evaluates the substance's risks under the amended commercial chemicals law, an agency advisory committee says. -
EPA May Not Issue Asbestos Warning For 3 years
Feb 2, 2017 | Chem.Info
By Andy Szal
Health experts and safety advocates called on federal officials to warn the public about insulation laced with asbestos — even though it could be years before they are required to do so. -
Echa Publishes Statistics On SVHC Authorisation Applications
Feb 3, 2017 | Chemical Watch
Echa has published statistics on received applications for authorisation for uses of substances included in Annex XIV of REACH – the authorisation list. -
Echa Publishes Use Map On Imaging And Printing Products
Feb 3, 2017 | Chemical Watch
Echa has added a new use map on imaging and printing products to its online library of sector maps. -
(ACC Mentioned) Congress Kills SEC Reporting Rule; House To Vote On Methane
Feb 3, 2017 | E&E Daily
By Arianna Skibell
Repealing the Bureau of Land Management's methane venting and flaring rule would be a huge boon for Exxon Mobil Corp. and other oil and gas companies, environmental group Friends of the Earth said in an analysis released today. -
GOP 'Smart Strategy' For Axing Rule Hinges In Part On Timing
Feb 3, 2017 | E&E Daily
By Hannah Hess
Senators who like President Trump campaigned on promises to eliminate the Clean Power Plan are fine with the White House slow-walking efforts to tackle the rule. -
LNG Plant's Environmental Impact May Need Closer Look: Court
Feb 3, 2017 | BNA Daily Environment Report
By Rebecca Kern
Federal appeals court judges questioned whether the Energy Department went far enough to analyze the environmental impacts of increased natural gas production tied to exports from a liquefied natural gas terminal in Texas (Sierra Club v. U.S. Dep't of Energy, D.C. Cir., No. 15-1489, oral argument 2/2/17). -
Shell 'Ramping Up Construction' On Pennsylvania Chemical Complex
Feb 2, 2017 | Platts
By Justin Schneewind and Shashank Shekhar
Shell Chemicals has been making progress on a petrochemicals complex designed to leverage affordable feedstocks from Northeast US shale-gas plays, the company said Thursday. -
(ACC Mentioned) Chemical Makers Get Reprieve If Congress Blocks Plant Security Rule
Feb 3, 2017 | BNA Daily Environment Report
By Sam Pearson
Chemical manufacturers might win a reprieve from new EPA regulations as Congress moves forward with a plan to overturn a new chemical plant security rule. -
(ACC Mentioned)Congress Considers Revoking Industrial Chemical Safety Rule
Feb 3, 2017 | Chemical & Engineering News
By Jeff Johnson
Congress is considering legislation that would nullify a recent regulation on industrial chemical safety. -
(ACC Mentioned) Industry Hails CRA Measure To Undo EPA's RMP Rule But Fate Unclear
Feb 2, 2017 | Inside EPA
By Dave Reynolds
Chemical and other manufacturers are hailing the recently introduced Congressional Review Act (CRA) resolution to undo EPA's rule revising its Risk Management Plan (RMP) facility safety program, but the legislation's fate is unclear as it currently has fewer than 20 co-sponsors and it is unknown whether GOP leaders will give the measure floor time. -
Natural Gas Product Explosion Not Covered by Policy
Feb 3, 2017 | BNA Daily Environment Report
By Peter Hayes
An insurer doesn't have to cover injuries caused by the explosion of a product it intended to resell, the U.S. Court of Appeals for the Eighth Circuit ruled (Hiland Partners GP Holdings, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 2017 BL 27355, 8th Cir., No. 15-3936, 1/31/17). -
STB, FRA Judicial Ally Under Attack
Feb 2, 2017 | RailwayAge Magazine
By Frank N. Wilner
If Judge Neil Gorsuch is Senate-confirmed to the Supreme Court, federal regulatory agencies such as the Surface Transportation Board (STB) and Federal Railroad Administration (FRA) could be closer to losing a handy, trusted and effective judicial ally in their interpretations of the statutes they administer. -
(ACC Mentioned) Eight-Year Ozone Standard Delay Legislation Revived
Feb 3, 2017 | BNA Daily Environment Report
By Patrick Ambrosio
An industry-supported proposal to delay deadlines under the EPA's 2015 ozone standards was revived for consideration by the 115th Congress, with the bill expected to be strongly opposed by environmental and public health advocates. -
Lawmakers Reintroduce Bill To Delay, Reform NAAQS Process
Feb 3, 2017 | Inside EPA
A group of mostly GOP senators has reintroduced a bill that would extend EPA's process for setting national ambient air quality standards (NAAQS) and ease future limits, legislation that could win approval given its support from top Republican leaders, including House Speaker Paul Ryan (R-WI). -
Finding on Missing State Ozone Plans Clears Regulatory Freeze
Feb 3, 2017 | BNA Daily Environment Report
By Patrick Ambrosio
The EPA is taking action against 15 states and the District of Columbia that failed to submit required plans for controlling ozone pollution, in what is one of the few agency decisions to be issued during a governmentwide freeze on new regulations. -
Bill Gutting EPA Climate Authority Has 100-Plus GOP Co-Sponsors
Feb 3, 2017 | BNA Daily Environment Report
By David Schultz
A bill that would gut the EPA's authority on the issue of climate change has strong Republican support, garnering dozens of co-sponsors days after being introduced. -
Gorsuch's Chevron, Originalist Views Suggest Mixed Environmental Record
Feb 2, 2017 | Inside EPA
By Abby Smith
Appellate court judge Neil Gorsuch, President Donald Trump's Supreme Court nominee, is highly skeptical of courts granting agencies deference to interpret statutes and is committed to adhering to the “original” meaning of the Constitution -- qualities that likely will not endear him to the environmental community, sources say. -
Senator Doubts Air Law CO2 Enforcement Under Sessions
Feb 2, 2017 | Inside EPA
Sen. Sheldon Whitehouse (D-RI) is citing past comments from Sen. Jeff Sessions (R-AL) -- President Donald Trump's nominee to be the next attorney general (AG) -- questioning the need for carbon dioxide (CO2) regulation as an indication that Sessions will not pursue Clean Air Act enforcement for greenhouse gas emissions if he wins Senate confirmation. -
Republicans Try a New Tack on Climate Change
Feb 3, 2017 | The New York Times
By Justin Gillis
Not long ago, many Republican officeholders had a simple answer when asked about the changing climate: What changing climate?
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Suspended Committee Rules Don't Merit Pruitt Challenge: Carper
Feb 3, 2017 | BNA Daily Environment Report
By Brian Dabbs
Suspended committee rules used to advance the nomination of Scott Pruitt as EPA administrator probably don't merit a technical challenge on the Senate floor, the leading Democrat in the uphill battle to derail the nominee, Sen. Tom Carper (D-Del.), told Bloomberg BNA.
Environment and Public Works (EPW) Committee Republicans moved the Pruitt nomination forward Feb. 2 despite a second boycott by colleagues across the aisle.
The committee action clears a significant hurdle for Pruitt, currently the Oklahoma attorney general. But Democrats continue to bog down Senate floor confirmation votes for President Donald Trump's Cabinet picks.
Pruitt's floor vote is potentially weeks away, according to statements by Senate Majority Whip John Cornyn (R-Texas) Feb. 2.
Senate leadership will first seek to confirm Betsy DeVos, who has met with unanimous Democratic opposition and two Republican defections, as education secretary. Then the chamber will move to confirm Sen. Jeff Sessions (R-Ala.) as U.S. attorney general, Cornyn said.
Meanwhile, the Finance Committee in recent days suspended rules to advance Rep. Tom Price (R-Ga.) to lead the Health and Human Services Department and Steve Mnuchin as treasury secretary. Cornyn said those nominations would also come before Pruitt.
Rules Suspended for Pruitt
In response to the Democratic boycott, EPW Chairman John Barrasso (R-Wyo.) suspended committee rules that require two Democrats to be present for a quorum on a nomination vote. The suspension also discarded a rule to force a 72-hour advance notice period for the vote.
All Republicans voted in favor of the suspension.
Barrasso said the Senate parliamentarian, the chamber's rule arbiter, cleared the maneuver.
“This has been vetted with the parliamentarian. This is consistent with the rules, and if any challenge is made by the Democrats, the parliamentarian will sustain what we did here,” Barrasso told reporters.
Carper, the committee's ranking member, told Bloomberg BNA he doesn't intend to raise such a challenge, known in Senate parlance as a “point of order.”
“If my legal counsel comes to us and says, ‘There's a legal problem here,’ we'd certainly consider that. But they have not come to us with that assertion,” he said.
Following the committee vote, Barrasso repeated his argument that a new president deserves to fill a Cabinet. The Democratic boycott sets a new precedent, he said, labeling both the boycott and suspension “extraordinary.”
Democrats say Pruitt's refusal to disclose e-mails between his office and fossil fuel companies should prevent confirmation of the nominee. Pruitt is still involved in several active lawsuits against the EPA, including challenges to the Clean Water Rule, Clean Power Plan, ozone air quality standards, mercury standards and methane limits for the oil and natural gas industry.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030352&vname=dennotallissues&fn=105030352&jd=105030352
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Children's Total Chemical Exposure Crucial, EPA Advisers Say
Feb 3, 2017 | BNA Daily Environment Report
By Pat Rizzuto
The EPA should assess children's total exposure to chemicals as it evaluates the substance's risks under the amended commercial chemicals law, an agency advisory committee says.
Assessing total, or “aggregate,” exposures children have from diverse sources of the same chemical would help the agency ensure it has considered children's particular vulnerabilities as required by the Toxic Substances Control Act amendments of 2016, the EPA's Children's Health Protection Advisory Committee said in preliminary deliberations Feb. 1 and Feb. 2.
The EPA asked the committee to weigh in on toxicity, exposure or other information it will need to implement the amended chemicals law. The agency also asked for advice on risk-assessment strategies and methodologies it should use and specialists that could help it evaluate risks chemicals pose to children.
The Toxic Substances Control Act Amendments of 2016 require the EPA's risk evaluations to consider health concerns chemicals raise for “potentially exposed or susceptible” subpopulations. Such groups include infants, children, pregnant women, workers or the elderly.
The amendments direct the agency to explain in its risk evaluations whether it considered aggregate exposures to a chemical under its conditions of use. The statute does not require the agency to conduct aggregate exposures.
Initial Recommendations
The committee discussed ideas it plans to transmit to the agency in March. No final decisions were made but ideas included urging the EPA to:
• assess children's aggregate exposures to a chemical even if some of its uses are primarily under the jurisdiction of an agency other than the EPA;
• use authority provided under amended TSCA to order chemical manufacturers and processors to provide needed toxicity and exposure data;
• obtain information about the rate at which chemicals are absorbed by, distributed and metabolized within, and eliminated by children's bodies;
• use the Navigation Guide methodology developed by Tracey Woodruff and Patrice Sutton from the University of California, San Francisco, to systematically evaluate chemicals; and
• consider all life stages including exposures that may occur in the womb, while lactating, fetal exposures and prior to age six.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030347&vname=dennotallissues&fn=105030347&jd=105030347
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EPA May Not Issue Asbestos Warning For 3 years
Feb 2, 2017 | Chem.Info
By Andy Szal
Health experts and safety advocates called on federal officials to warn the public about insulation laced with asbestos — even though it could be years before they are required to do so.
The Billings Gazette reports that tens of millions of buildings in the U.S. likely utilize Zonolite insulation made from vermiculite, a mica-like mineral — mined for decades in Libby, Mont. — that contains asbestos.
The mine closed in 1990, but residents of Libby continued to be diagnosed with diseases related to asbestos exposure for decades afterward. Critics warned that home and business owners — as well as construction and repair workers — unknowingly remain vulnerable to Zonolite despite the widely acknowledged dangers of asbestos.
Proponents of reforming U.S. chemical laws long pointed to the inability to ban asbestos as the prime example of those laws' failures. A long-sought overhaul was passed last summer, and the Environmental Protection Agency listed asbestos among the first 10 high-risk substances that it would evaluate under the new law.
That evaluation period, however, could take three years; should the agency determine that asbestos presents an "unreasonable risk to humans and the environment," it could ban them outright or wait another two years to reduce those risks via the rule-making process.
The latest evaluation process, meanwhile, comes nearly 14 years after the EPA originally considered a public warning regarding Zonolite insulation. The agency came under heavy political pressure over fears about cleanup costs, and a proposed 2003 warning was scrapped on the same day that then-EPA head Christine Todd Whitman resigned.
The Gazette also pointed out President Donald Trump's decades-long support of asbestos, from alleging that organized crime was behind asbestos limits to calling it a "miracle fiber" in congressional testimony.
Celeste Monforton, a public health researcher at George Washington University, told the paper that the evidence of asbestos risks was "overwhelming" and that "there's no compelling need for more study."
“The new law says EPA has up to three years to study its top ten picks, but it surely doesn't mean they need to take three years,” Monforton said.
http://www.chem.info/news/2017/02/epa-may-not-issue-asbestos-warning-3-years
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Echa Publishes Statistics On SVHC Authorisation Applications
Feb 3, 2017 | Chemical Watch
Echa has published statistics on received applications for authorisation for uses of substances included in Annex XIV of REACH – the authorisation list.
One hundred and eleven applications have been received in the past five years, resulting in 66 final decisions from the European Commission for each use and applicant, either granting or refusing authorisation.
From 2012 to 30 January 2017 there were:
277 received notifications;
111 received applications (from 195 applicants);
180 uses for the substances for which authorisation was sought;
and 66 Commission decisions per use and per applicant.
Chromium trioxide received the highest number of applications, with 25 from 61 applicants. Sodium dichromate came second with 17 applications from 23 applicants. And 1,2-Dichloroethane (EDC) was third with 15 applications from 17 applicants.
The substance that saw the highest number of Commission decisions was hexabromocyclododecane (HBCDD) with 26 decisions. This was followed by 12 decisions on lead sulfochromate yellow (CI pigment yellow 34) and lead chromate molybdate sulphate red (CI pigment red 104). Trichloroethylene had nine Commission decisions, while Bis(2-ethylhexyl) phthalate (DEHP) received seven.
https://chemicalwatch.com/53325/echa-publishes-statistics-on-svhc-authorisation-applications
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Echa Publishes Use Map On Imaging And Printing Products
Feb 3, 2017 | Chemical Watch
Echa has added a new use map on imaging and printing products to its online library of sector maps.
The library aims to help registrants prepare their chemical safety assessments (CSAs) and now includes five sector use maps.
Developed by sector organisations representing downstream users, the maps provide realistic information on use and conditions of use agreed at sector level, Echa says.
I&P Europe developed the new map on imaging and printing products.
To help registrants select the relevant use map, each sector map gives an indication of the type of substances and products covered.
The substances covered by the imaging and printing use map are:
surfactant, polymer, solvent, base/acid;
hydrotope, monomers, oligomer;
photoinitiator, filler, pigment;ink, IPA, dyes, resin;
acrylate, petroleum hydrocarbons, aliphatic hydrocarbons;
andbiocide, bleaching agents, brighteners, and cleaning agents.
And the covered uses are: formulation, industrial/professional and consumer use of chemicals from the imaging and printing industry, such as pressroom chemicals (fountain solutions, washes and auxiliaries).
They also include digital printing inks, toner, photographic processing chemicals, coatings, offset plate-processing, and flexographic plate processing.
The imaging and printing use map includes exposure assessment input sector-specific worker exposure descriptions (Sweds).
Echa has four other sector maps in its online library. These are:
soaps, detergents and maintenance products;
cosmetics and personal care products;
construction chemicals; andadhesive and sealants.
https://chemicalwatch.com/53326/echa-publishes-use-map-on-imaging-and-printing-products
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(ACC Mentioned) Congress Kills SEC Reporting Rule; House To Vote On Methane
Feb 3, 2017 | E&E Daily
By Arianna Skibell
Repealing the Bureau of Land Management's methane venting and flaring rule would be a huge boon for Exxon Mobil Corp. and other oil and gas companies, environmental group Friends of the Earth said in an analysis released today.
The group published the results of a freedom of information request filed with the Interior Department as Congress prepares to use the Congressional Review Act to kill the rule. A House vote is set for today.
The action comes amid a flurry of anti-regulatory activity on Capitol Hill. Yesterday the Senate voted to kill the coal mining Stream Protection Rule.
And the chamber this morning followed the House in passing H.J. Res. 41 against the Securities and Exchange Commission drilling and mining global government payments reporting rule (E&E Daily, Feb. 1). The vote was 52-47.
BLM's rule seeks to curb greenhouse gas emissions from oil and gas flaring, venting and leakage on public and tribal lands. An analysis by the Environmental Defense Fund says the releases amount to almost $300 million per year worth of lost fuel.
"They are giving away a taxpayer-owned resource for free," said Lukas Ross, climate and energy campaigner at Friends of the Earth. "Seems like Big Oil is having a pretty fantastic week, all things considered."
The FOE report highlights oil and gas companies that the group says are either using or releasing public natural gas and that also have close ties with the Trump administration.
Documents show Exxon Mobil, Devon Energy Corp. and Encana Corp., all with some ties to the new government, used significant amounts of gas for equipment or released it,
Taxpayers could lose up to $800 million in forgone royalties over a decade, Friends of the Earth pointed out in a news release, citing a 2014 report from the Western Values Project.
"If the Congressional Review Act is brought to bear against the flaring rule, it wouldn’t just erase a single regulation," FOE wrote, " it would block all future administrations from developing anything similar. This would be a disaster."'Most egregious'
Friends of the Earth releasing the documents today shows how environmental groups and Democrats are trying to stop Congress from scrapping the rule, or at least warn them about what they see as the potential effects.
Earlier this week, House Natural Resources Committee Democrats held an unofficial hearing on the issue (E&E Daily, Feb. 2). And yesterday 24 Senate Democrats urged leaders to protect the rule.
They say the rule is essential for protecting public health and addressing climate change. They also say it's good for a "rapidly expanding" segment of the oil and gas industry that handles methane waste mitigation (Energywire, Jan. 27).
"Manufacturing, development and outfitting of oil and gas wells with these technologies is a vibrant and growing American business already located in 46 states throughout the country," they wrote.
"This burgeoning industry needs the certainty that comes with a common baseline standard across the West to invest in growth," they said.
But Kathleen Sgamma, president of the Western Energy Alliance, has said the venting and flaring rule may actually hamper methane-capture technologies and innovation with red tape.
Sgamma said last month that "companies already have an incentive to capture as much methane as possible because it's the very product they sell."
Republicans and pro-drilling Democrats have joined companies in calling the rule too costly, duplicative and beyond BLM's power to promulgate (Energywire, Jan. 17).
"These are probably the most egregious of all the rules that we can think of," House Natural Resources Chairman Rob Bishop (R-Utah) said on a call with reporters last month.More rules targeted
The Senate has not said when it will take up H.J. Res. 36 to kill the methane rule, but the chamber has usually acted soon after the House.
Also this week, Oklahoma Rep. Markwayne Mullin (R) introduced H.J. Res. 59 to strip recent U.S. EPA safety regulations for thousands of refineries and chemical factories.
Chemical and fossil fuel interests, and the U.S. Chamber of Commerce, have long clamored for such a measure. They say the EPA regulation, known as the risk management program rule, would pose undue costs (Greenwire, Jan. 26).
The Obama administration finalized the rule in December in response to a 2013 explosion at a Texas fertilizer plant that killed 15 people (E&E News PM, Dec. 21, 2016).
Mullin said in a statement, "It trades safety for paperwork and delivers far more burden than benefit for businesses that have to abide by it."
The American Chemistry Council praised Mullin's move, saying EPA's regulation would "creat[e] new national and local security issues."
Public safety advocates say that use of the CRA will scuttle all EPA attempts to crack down on refinery and chemical plant safety.
The House already has a roster of other resolutions to vote on next week, including H.J. Res. 44, to scrap BLM's land-use plan rule, dubbed Planning 2.0 (E&E Daily, Jan. 31).
At this point, Democrats can do little more than try to run out the clock to prevent Republicans from killing all the Obama-era rules on the chopping block.
Reporters Gabriel Dunsmith, Dylan Brown and Hannah Hess contributed.
http://www.eenews.net/eedaily/stories/1060049489/search?keyword=%22American+Chemistry+Council%22
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GOP 'Smart Strategy' For Axing Rule Hinges In Part On Timing
Feb 3, 2017 | E&E Daily
By Hannah Hess
Senators who like President Trump campaigned on promises to eliminate the Clean Power Plan are fine with the White House slow-walking efforts to tackle the rule.
Hopes are high that Oklahoma Attorney General Scott Pruitt (R) will be confirmed as U.S. EPA administrator next week, and they say filling top posts within the agency before detailing plans to ax the Obama-era rule to slash greenhouse gas emissions from power plants is "smart strategy."
"The old is on its way out," Sen. Jim Inhofe (R-Okla.) said yesterday. "[Pruitt is] very much enthusiastic about getting it done — it's just there isn't time to do everything at once," Inhofe told E&E News.
The White House has sidestepped questions about whether the administration might target the 2009 endangerment finding that is the legal foundation for most regulations aimed at cutting carbon dioxide, as some transition officials have suggested (E&E News PM, Jan. 31).
Inhofe, former chairman of the Senate Environment and Public Works Committee, and other GOP senators central to the efforts said they had not been consulted on tactics. But they had no doubt a plan is in the works.
"I haven't heard that actually verbalized to me as a strategy. I think it's a smart strategy," said Sen. Shelley Moore Capito (R-W.Va.).
"Get your people in place," she said, urging confirmation of Rick Perry to head the Energy Department. "I would think you'd want your team together so you can see which way you want to move forward."
Twenty-four states opposing the plan in court called on the administration to issue an executive order "on day one" laying out the view that the rule is unlawful and that EPA lacks authority to enforce it. They said it was necessary to "send an immediate and strong message to States and regulated entities that the Administration will not enforce the Rule" (E&E News PM, Dec. 15, 2016).
West Virginia Attorney General Patrick Morrisey (R), who led the letter with Texas Attorney General Ken Paxton (R), yesterday tweeted his disappointment in Democratic leaders for the "boycott" of a committee vote to advance Pruitt's nomination.
Sen. Mike Rounds (R-S.D.) also blamed Democrats for gumming up the confirmation process.
"Whether they do through attorney general or EPA is up to them, but most certainly if they can begin that process it's going to be very helpful. ... Normally agency heads are put in place in a more expeditious manner than what we have been able to do so far," Rounds said.
Sen. John Hoeven (R-N.D.) said he understands the White House is looking at the regulatory relief it can provide through executive action, while Congress looks at what it can do through the Congressional Review Act, adding, "And we're trying to work together to do it as effectively and efficiently as possible."
Democrats fired back yesterday.
Sen. Tom Carper (D-Del.), ranking member of the EPW Committee, suggested Trump needs to be reminded that backsliding on the deal would thwart efforts to be a global leader on climate.
"I'm not sure the president really knows what the Clean Power Plan is, what it would do. But we are picking up signals that they are not crazy about it," he joked.
"I would just remind him that we're trying to provide a leadership role for the world as a country to say climate change is real, sea-level rise is real and we need to provide some leadership by example," Carper said.
If the White House is waiting for Pruitt to announce action on the Clean Power Plan, Sen. Gary Peters (D-Mich.) said he sees it as another reason to oppose the nomination.
"It's a laundry list of reasons why he is bad for the country and bad for the protection of the environment of our country," Peters said.
Sen. Joe Manchin (D-W.Va.), one of the few members of his party to oppose Obama's signature climate rule, explained he and Pruitt seem to be on the same page about the regulation.
"Scott basically understands what we are going through in West Virginia coming from Oklahoma," Manchin said. He added he is still waiting on more disclosure and not yet decided about his vote.
A spokesman for Environment and Public Works Chairman John Barrasso (R-Wyo.) said that in the wake of the Supreme Court stay on the rule and ongoing litigation, he "looks forward to working with the Trump administration to determine the best and most lawful path forward on the Clean Power Plan."
Sen. John Boozman (R-Ark.) agreed Pruitt would be confirmed shortly, and the process would move along.
"At the end of the day I'm also a person that ran against removing this type of regulation. At the end of the day, we're going to get this thing done and so to be honest, I don't think it really makes a difference one way or the other how quickly it moves," Boozman said.
Reporter Geof Koss contributed.
http://www.eenews.net/eedaily/2017/02/03/stories/1060049495
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LNG Plant's Environmental Impact May Need Closer Look: Court
Feb 3, 2017 | BNA Daily Environment Report
By Rebecca Kern
Federal appeals court judges questioned whether the Energy Department went far enough to analyze the environmental impacts of increased natural gas production tied to exports from a liquefied natural gas terminal in Texas (Sierra Club v. U.S. Dep't of Energy, D.C. Cir., No. 15-1489, oral argument 2/2/17).
Nathan Matthews, a staff attorney at the Sierra Club, said during Feb. 2 oral arguments at the U.S. Court of Appeals for the District of Columbia Circuit that the Energy Department didn't take a “hard look” at the environmental impacts of the additional natural gas production tied to the Freeport LNG Development, L.P.'s LNG facility in Freeport, Texas.
Judge Robert Wilkins, who heard the case along with fellow Judges Karen Henderson and David Sentelle, asked the Energy Department whether it is able to assess the cumulative environmental impact of approving all of the LNG export terminals.
“Even though we're approving all of this, we're just going to say we can't tell what the impact is,” Wilkins said. “There's something that seems wrong with that.”
John Smeltzer, an attorney at the Justice Department arguing on behalf of the Energy Department, said DOE has done long-term projections of natural gas exports. But ultimately, he said, “It's very hard to provide really reliable information.”
While you can look at models for shale natural gas formations in the U.S., he said it won't be detailed enough to know regional specific impacts.
Pinpointing Regional Ozone Impacts
Although the Energy Department said the increased gas production could lead to increased regional ozone pollution, it provided no discussion of how many regions would suffer from increased ozone pollution and by how much, Matthews said.
Separately, Matthews said the DOE had the tools to determine the environmental impacts, but in not using them it violated the National Environmental Policy Act.
Smeltzer said that agency analyzed environmental impacts of the Freeport LNG terminal “to the extent that such impacts are reasonably foreseeable and can be meaningfully evaluated.” He said that the National Environmental Policy Act requires “nothing more” and that Sierra Club's petition should be denied.
“The causal connection between allowing exports and drilling in any particular area in relation to any particular air quality control district is highly untenable,” Smeltzer said.
Likewise, Jonathan Franklin, an attorney with Norton Rose Fulbright LLP, arguing on behalf of Freeport LNG Expansion L.P. as an intervenor for DOE in the case, said it would be impossible for the department to assess increased gas production impacts on air quality regions because Freeport itself doesn't know exactly where the gas it is planning to export comes from in the U.S.
The gas can come from anywhere in the U.S., Franklin said. “That is what was contributing in large measure to [DOE's] inability to find reasonable foreseeability in this case.”
Several Cases Against DOE
The Freeport case is just one of four lawsuits that the Sierra Club has filed in the D.C. Circuit against the Energy Department related to environmental reviews of LNG export facilities.
The other ongoing lawsuits include Dominion Resources Inc.'s Cove Point LNG facility on the Chesapeake Bay in Maryland; Cheniere Energy Inc.'s Corpus Christi LNG facility in San Patricio County, Texas; and Cheniere's Sabine Pass LNG terminal in Cameron Parish, La., which opened and began exports in 2016.
Last year, the D.C. Circuit denied the Sierra Club's four petitions against the Federal Energy Regulatory Commission's approval of the four LNG projects, saying the indirect environmental impacts of LNG exports would be better addressed by the Energy Department.
Judge Henderson asked whether the FERC decisions tied the hands of the judges in the case against the DOE. The Sierra Club said the FERC decision didn't affect this case because that decision directed the Sierra Club to take the issue against the Energy Department, which it did. Meanwhile, the Energy Department was more nuanced, saying the FERC decision came into play with respect to FERC's environmental assessment of the terminal.
Possible Court Outcomes
While it's difficult to predict the outcome of the case from the oral arguments, Christi Tezak, managing director of ClearView Energy Partners LLC, said one option is for the court to remand it back to the Energy Department for additional decision making.
If it did so, the Energy Department may have to proceed differently on future approvals, Tezak, who attended the arguments, told Bloomberg BNA Feb. 2.
The court might also deny the Sierra Club's petition, possibly causing other petitions to be denied as well.
“But then again, they may not because some of them are bringing different arguments as Sierra Club's thoughts on these permits evolved,” she said.
Meanwhile, Matthews said after the oral arguments that they were “promising.”
“I'm glad to see the court recognize environmental impact, and that some agency needs to do that,” he told Bloomberg BNA Feb. 2. “If DOE doesn't do it, who will?”
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg L.P., parent of Bloomberg BNA.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030358&vname=dennotallissues&fn=105030358&jd=105030358
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Shell 'Ramping Up Construction' On Pennsylvania Chemical Complex
Feb 2, 2017 | Platts
By Justin Schneewind and Shashank Shekhar
Shell Chemicals has been making progress on a petrochemicals complex designed to leverage affordable feedstocks from Northeast US shale-gas plays, the company said Thursday.
The company has been "ramping up construction" at the site in Potter Township, Pennsylvania, in the Pittsburgh area that will produce 1.6 million mt/year of polyethylene, Shell CEO Ben van Beurden said in a conference call to discuss fourth-quarter results.
"We are working our way through regulatory approval," he said. "A lot of site preparation is already done."
Shell has not set a startup date but has previously targeted early 2020s.The site will host a seven-furnace ethane cracker which will feed into three polyethylene production lines -- gas-phased high density polyethylene, slurry HDPE, and linear low density polyethylene.
The location of the project is unique, as recent waves of US ethylene and polyethylene projects have almost exclusively targeted the US Gulf Coast.
The site will represent the largest ethylene and polyethylene capacities in the region, but Shell pointed to significant advantages in the location.
"It sits on top of the largest feedstock in the United States," van Beurden said.
Shell expects to feed the steam cracker with affordable ethane sourced from the Marcellus and Utica shale basins.
Additionally, more than 70% of North American polyethylene demand stands within a 700-mile radius of Pittsburgh, according to Shell.
"It's right in the middle of where the main polyethylene demand in North America is," van Beurden said.
Shell made final investment decision on the project in June. Shell exercised its option to purchase the site in November 2014. In August 2013, Shell said it had secured ethane supply commitments from Hilcorp Energy, Consol Energy, Seneca Resources and Noble Energy.http://www.platts.com/latest-news/petrochemicals/houston/shell-ramping-up-construction-on-pennsylvania-21780472
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(ACC Mentioned) Chemical Makers Get Reprieve If Congress Blocks Plant Security Rule
Feb 3, 2017 | BNA Daily Environment Report
By Sam Pearson
Chemical manufacturers might win a reprieve from new EPA regulations as Congress moves forward with a plan to overturn a new chemical plant security rule.
Under a Congressional Review Act resolution of disapproval (H.J. Res. 59) introduced in the House Feb. 1, lawmakers could reject the Environmental Protection Agency's final rule (RIN:2050-AG82), which would place new information sharing and safety auditing requirements on certain chemical facilities.
The joint resolution introduced by Rep. Markwayne Mullin (R-Okla.) would prevent the EPA from implementing the rule.
The rule was the most tangible accomplishment of an interagency initiative launched by executive order after a fertilizer plant explosion in West, Texas, killed 15 people in April 2013.
The fertilizer explosion exposed poor coordination between the plant and local responders, among other lapses. The EPA rule added new safeguards including requirements that plants coordinate with local agencies, investigate near-misses and hold community meetings after safety lapses.
Mathy Stanislaus, then EPA assistant administrator for land and emergency management, defended the rule last year as a balance between industry and public safety needs.
‘Trades Safety for Paperwork’
Mullin said in a statement Feb. 2 the rule “trades safety for paperwork and delivers far more burden than benefit for businesses that have to abide by it.”
“The RMP rule wraps our businesses up in more bureaucratic red tape and makes it more difficult for them to keep their doors open, risking not only safety but also valuable jobs,” Mullin said. “This joint resolution provides much needed relief.”
Mullin, echoing industry complaints, said that the EPA had overstepped its authority by regulating process safety, an area he said was better left to the Occupational Safety and Health Administration's process safety management program.
In a statement Feb. 1, the American Chemistry Council praised Mullin's “strong commitment to safeguarding communities” by taking action to reduce new information sharing requirements for plants the group said could harm security.
“We, along with numerous Attorneys General, the Conference of Mayors and other local officials, urged EPA to address our security concerns prior to issuing its final rule,” the group said. “Unfortunately, EPA has not adequately addressed these concerns and has forced Congress to seek a repeal of the rule and its misguided changes to this important chemical safety program.”
Blunt Instrument
Public interest groups, which criticized the EPA's pace of work and accused the agency of moderating its policies during the rulemaking, said using the CRA on such a broad proposal would set a harmful precedent.
Because the CRA prohibits agencies from later pursuing “substantially similar” rulemakings, it could tie the hands of the EPA to do almost anything to increase safety at high-risk chemical plants, Yogin Kothari, a Washington representative at the Center for Science and Democracy, told Bloomberg BNA Feb. 2.
Kothari said he believed a letter by 21 industry groups to congressional leadership Jan. 25, was misleading because it said CRA action would let EPA “reconsider what, if any, revisions to the RMP regulations are needed to reduce the risk of an accidental release.”
Ultimately, Kothari said, lawmakers who support the CRA plan will be responsible for “preventing the EPA from doing the best job they can to prevent something like that from happening.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030356&vname=dennotallissues&fn=105030356&jd=105030356
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(ACC Mentioned)Congress Considers Revoking Industrial Chemical Safety Rule
Feb 3, 2017 | Chemical & Engineering News
By Jeff Johnson
Chemical manufacturers asked lawmakers to rescind EPA regulation
Congress is considering legislation that would nullify a recent regulation on industrial chemical safety.
Rep. Markwayne Mullin (R-Okla.) introduced the legislation, H.J. Res.59, on Feb. 2 at the urging of 21 business groups, including several chemical industry organizations. In a recent letter to Congress, the groups—which include the American Chemistry Council and the Society of Chemical Manufacturers & Affiliates—say Congress should block the regulation. The rule modifies EPA’s 25-year-old risk management plan program to reduce chemical plant accidents and protect communities, workers, and emergency responders.
The Obama Administration finalized the rule in late December. Under the Congressional Review Act, lawmakers have 60 legislative days to review the regulation and can vote to overturn it.
Echoing the chemical industry groups’ letter, Mullin says the regulation is unnecessary and burdensome and may make businesses less safe. EPA made the changes in response to a 2013 executive order from then-president Barack Obama. That directive ordered a broad multiagency safety review and came in the wake of a warehouse explosion involving ammonium nitrate that killed 15 people in West, Texas. The EPA regulation was the only regulatory response to emerge from the executive order.
The new regulation aims to encourage better communication among emergency responders and requires independent third-party accident audits and company consideration of inherently safer manufacturing methods.
If Congress blocks the regulation, the executive branch can’t reissue it in the same form or in any other variation that is substantially the same. Congress has successfully used the 1996 Congressional Review Act against a regulation only once.
https://cen.acs.org/articles/95/i6/Congress-considers-revoking-industrial-chemical.html
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(ACC Mentioned) Industry Hails CRA Measure To Undo EPA's RMP Rule But Fate Unclear
Feb 2, 2017 | Inside EPA
By Dave Reynolds
Chemical and other manufacturers are hailing the recently introduced Congressional Review Act (CRA) resolution to undo EPA's rule revising its Risk Management Plan (RMP) facility safety program, but the legislation's fate is unclear as it currently has fewer than 20 co-sponsors and it is unknown whether GOP leaders will give the measure floor time.
Industry officials made an 11th-hour push for leadership support for the resolution last week after the rule was not included on a short-list of Obama regulations slated for repeal under the CRA process.
Despite uncertainty about leadership support, Rep. Markwayne Mullin (R-OK) and other GOP co-sponsors Feb. 1 introduced H.J. Res. 59, which seeks to repeal the rule under the CRA.
The CRA, enacted during the Clinton administration, allows Congress to pass disapproval resolutions on simple majority votes in the House and Senate to reverse discretionary rules promulgated within 60 legislative days of their actions, allowing lawmakers to bypass the Senate filibuster. For the rules to be repealed, the disapproval resolutions must be signed by the president.
The law has only been used successfully once, in 2001, to repeal a workplace safety rule enacted at the end of the Clinton administration.
Republicans and their supporters in Congress are advancing several resolutions this week, targeting several Obama-era environmental rules at the Interior Department, as well as a set of policies for implementing Obama's July 2014 executive order requiring agencies to account for federal contractors' labor and workplace safety records in awarding contracts.
But the fact that the RMP rule was not on the House Republicans leadership's short-list for a CRA vote, combined with the scant number of co-sponsors for the bill -- just 15 at press time -- raises questions over whether a push to vote to disapprove EPA's rule has enough support to even secure a floor vote in the lower chamber.
EPA Jan. 13 issued the RMP rule as part of the Obama administration's effort to improve industrial facility safety under a 2013 Executive Order (EO). The final rule requires certain facilities to conduct new hazard analysis and independent audits, and release certain facility data to first responders and the public.
But the rule has drawn opposition from chemical and other industry groups, who cited their concerns in statements praising the resolution's introduction.
The American Chemistry Council (ACC) and the National Association of Chemical Distributors (NACD), for example, welcomed the disapproval resolution's introduction, arguing that the agency's existing RMP rule is adequate and new requirements are costly and unnecessary.
ACC also reiterates security concerns that numerous entities have raised with the rule, including the Department of Homeland Security, and President Donald Trump's nominee to head EPA, Oklahoma Attorney General Scott Pruitt (R).
“We, along with numerous Attorneys General, the Conference of Mayors and other local officials, urged EPA to address our security concerns prior to issuing its final rule,” the group says in a Feb. 1 statement. “Unfortunately, EPA has not adequately addressed these concerns and has forced Congress to seek a repeal of the rule and its misguided changes to this important chemical safety program.”
Third-Party Audits
NACD in a Feb. 1 statement faults the rule's requirements that facilities conduct “costly third-party audits,” investigate near misses, and assess whether alternative chemicals or processes would make facilities safer.
“[T]he RMP rule imposes significant new costs on industry without identifying or quantifying the safety benefits to be achieved through new requirements,” the group says.
In a Feb. 2 statement calling for Congressional support for the resolution, Mullin argues that EPA's RMP rule encroaches on the authority of the Occupational Safety and Health Administration (OSHA), and that the disclosure requirements will make facilities less safe.
“The EPA overstepped OSHA with this rule and makes our operating facilities even less safe than they were before,” Mullin says. “I urge my colleagues to support H.J.Res. 59 to reduce a drastic burden on our businesses and keep our national security strong.”
The American Forest & Paper Association (AF&PA) is also praising introduction of the RMP resolution, and urging Congress to swiftly approve the measure to undo what it calls and overly burdensome rule.
“We welcome the use of the Congressional Review Act to disapprove the EPA’s final Risk Management Plan -- a costly and burdensome midnight rule that does not deliver additional safety beyond the previous regulation. In fact, some provisions of the new rule may actually impede efforts to create a safer workplace and community by diverting resources away from proven approaches. Our manufacturers continue to make improvements and work to provide a safe workplace for employees and the communities that surround our facilities,” said AF&PA President and CEO Donna Harman.
ACC, NACD and roughly 20 other trade associations in a Jan. 25 letter to Congressional leadership pressed for CRA repeal of the RMP rule. The letter came after House Majority Leader Kevin McCarthy (R-CA) indicated in a Jan. 24 Wall Street Journal op-ed that the RMP rule did make a short-list for CRA review.
But McCarthy also suggested that his list may not be exclusive. “In the weeks to come, the House and Senate will use the Congressional Review Act to repeal as many job-killing and ill-conceived regulations as possible,” he said.
If lawmakers do not undo the RMP rule via a CRA disapproval resolution, it will be up to the Trump administration to eliminate or revise it. Industry sources have already said that groups will likely challenge the rule in federal court if their push for a CRA resolution fails, though that would have to wait until the rule takes effect.
The Obama EPA's rule updating its RMP facility safety program was issued as part of a broad federal effort to implement President Obama's August 2013 Executive Order 13650 on improving the safety and security of industrial plants issued in the wake of a fertilizer facility explosion in West, TX, that killed 15 people, including first responders.
The rule was scheduled to take effect 60 days after its Jan. 13 publication in the Federal Register. But the rule is one of 30 rules for which EPA has delayed implementation until at least March 21 to allow the Trump administration time to review. --
https://insideepa.com/daily-news/industry-hails-cra-measure-undo-epas-rmp-rule-fate-unclear
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Natural Gas Product Explosion Not Covered by Policy
Feb 3, 2017 | BNA Daily Environment Report
By Peter Hayes
An insurer doesn't have to cover injuries caused by the explosion of a product it intended to resell, the U.S. Court of Appeals for the Eighth Circuit ruled (Hiland Partners GP Holdings, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 2017 BL 27355, 8th Cir., No. 15-3936, 1/31/17).
National Union Fire Insurance Co. had no duty to defend or indemnify natural gas processor Highland Partners for injuries to a truck driver who was attempting to empty a tank containing hydrocarbon condensate, the court said.
The policy bars coverage for injuries caused by a “pollutant.” The condensate is a pollutant because it's flammable, volatile and explosive, the court said.
The fact that Highland resold the condensate didn't mean it wasn't a pollutant, the Eighth Circuit said. It joined the majority of courts in reaching that conclusion.
Judge Diana E. Murphy wrote the Jan. 31 opinion, joined by Judges Jane Kelly and Ann D. Montgomery.
Hall Estill in Tulsa, Okla., and Pearce & Durick in Bismarck, N.D., represented Highland.
Meagher & Geer in Minneapolis represented National Union.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030357&vname=dennotallissues&fn=105030357&jd=105030357
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STB, FRA Judicial Ally Under Attack
Feb 2, 2017 | RailwayAge Magazine
By Frank N. Wilner
If Judge Neil Gorsuch is Senate-confirmed to the Supreme Court, federal regulatory agencies such as the Surface Transportation Board (STB) and Federal Railroad Administration (FRA) could be closer to losing a handy, trusted and effective judicial ally in their interpretations of the statutes they administer.
Gorsuch likely will encourage the Court to send to the dustbin of history its 1984 ruling known as the “Chevron deference.” That ruling instructed judges to accept a regulatory agency’s “reasonable”—neither arbitrary nor capricious—interpretation of a statute. The Republican-controlled Congress is considering similar action legislatively.
Gorsuch’s target, shared by many political conservatives, is regulatory activism by flashpoint administrative bodies such as the Environmental Protection Agency. The STB and FRA are collateral roadkill.
Regulatory agency findings of fact are not at risk, nor are interpretations of a statute where the intent of Congress is clear to a court. The Chevron deference attaches to regulatory agency interpretations of statutory ambiguities.
Gorsuch, currently a member of the 10th Circuit Court of Appeals in Denver, expressed his negative view of the Chevron deference in a concurring opinion published just hours before the announcement of his Jan. 31 nomination to the Supreme Court.
As for the attack on the Chevron deference by congressional Republicans, the House on Jan. 25 voted 238-183 to pass the Regulatory Accountability Act, a provision of which would, in the words of its sponsor, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), “end judicial deference to bureaucrats’ statutory and regulatory interpretations.” The Senate has not considered the bill.
Says a now-retired litigator with the STB’s Interstate Commerce Commission predecessor, “The Chevron deference is a quasi-presumption in the agency’s favor. It is most significant in close cases where there is a divided appellate court,” such as when the STB’s 15-month merger moratorium survived a 2-1 vote in July 2000 by the District of Columbia Circuit Court. In considering whether the STB’s interpretation of its underlying statute was compatible with the STB’s moratorium ruling, the court ruled it was “within the bounds of the Board’s statutory authority” and “was neither arbitrary and capricious nor otherwise improper.”
The fate of the Chevron deference could also play a role in a currently pending STB rulemaking. The STB is considering granting captive rail shippers, through competitive switching and under certain limitations, access to a competing railroad. The shippers seek relief under a statute that uses terms such as “practicable,” “in the public interest,” and “necessary to provide competitive rail service,” whose meaning has been challenged as in the eyes of the beholder.
“I don’t think one can predict whether eliminating the Chevron deference would help carriers or shippers,” the retired litigator said. “It depends how far the agency pushes the envelope in its reading of the applicable statute. Courts can easily factor in an agency’s alleged expertise in its field without considering it equivalent to expertise in statutory interpretation.”
Gorsuch, in his Jan. 25 concurring opinion, said that in the absence of the Chevron deference, regulatory agencies would “continue to offer guidance on how they intend to enforce [their underlying] statutes [but] judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law.”
Fans of the Chevron deference argue that if Congress doesn’t like what an agency is doing, it can change the law—or be more specific in writing laws so as to avoid ambiguities. They also argue that elimination of the Chevron deference only substitutes judicial bias for regulatory agency bias in interpreting statutory ambiguities. Moreover, statutorily ambiguous terms such as “public interest” and “reasonable rate” are best interpreted by an expert agency.
Supporters of Goodlatte’s legislation say the reason courts are better equipped to interpret statutory ambiguities is one of consistency—that courts adhere to precedent, whereas regulatory agencies are more prone to change their views, especially if there are political considerations. Of course, judicial nominations and confirmations also are often determined by politics.
To read the 1984 Supreme Court decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., CLICK HERE.
http://www.railwayage.com/index.php/blogs/frank-n-wilner/stb-fra-judicial-ally-under-attack.html
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(ACC Mentioned) Eight-Year Ozone Standard Delay Legislation Revived
Feb 3, 2017 | BNA Daily Environment Report
By Patrick Ambrosio
An industry-supported proposal to delay deadlines under the EPA's 2015 ozone standards was revived for consideration by the 115th Congress, with the bill expected to be strongly opposed by environmental and public health advocates.
The Ozone Implementation Act of 2017 (H.R. 806, S. 263) would push back by eight years a significant deadline for the EPA to determine what areas of the country do and don't meet the 70 parts per billion standards, from October 2017 to October 2025. Ground-level ozone, which is formed when pollution emitted by vehicles, power plants and other sources reacts in the presence of sunlight, is linked to increased asthma attacks and other adverse health effects.
Parts of at least 22 states are on track to be designated as out of attainment later this year, a decision that would trigger additional pollution control planning and permitting requirements, according to a fall 2016 Bloomberg BNA survey of state environmental agencies.
One of the bill's sponsors, Rep. Pete Olson (R-Texas), in a Feb. 1 statement, said the legislation would provide “needed flexibility” to the state and local agencies tasked with implementing the ozone standard and cited “strong, early support” in both chambers. The bill does have limited bipartisan support early on: Sen. Joe Manchin (D-W.Va.) signed on as a co-sponsor to the Senate version of the bill, while Reps. Sanford Bishop (D-Ga.), Jim Costa (D-Calif.) and Henry Cuellar (D-Texas) are House co-sponsors.
The legislation, introduced Feb. 1 by Olson and Sen. Shelley Moore Capito (R-W.Va.), would do more than just delay implementation of the 2015 ozone standards. It also would make several changes to the way EPA conducts reviews of national ambient air quality standards for ozone, particulate matter and four other pollutants. The bill, which last year received support from the National Association of Manufacturers, the American Chemistry Council and other national businesses groups, also would:
• establish a 10-year cycle for the EPA to conduct mandatory reviews of its standards (up from five years under current law);
• allow the EPA administrator to consider technological feasibility in a decision on where to set the standards (current law restricts the decision-making process to health risk and welfare considerations);
• instruct the agency to prepare a report to Congress on the effects of emissions from other countries on ozone compliance in the U.S.; and
• require the processing of permits for new and modified industrial facilities under the less-stringent 2008 ozone standards until 2025.
The EPA frequently misses its five-year review cycle: for example, review of the 2008 ozone standards took about seven years. Supporters of the Ozone Standards Implementation Act point to that as evidence that the agency needs a longer review cycle, but environmental advocates, who typically step in with deadline lawsuits after the agency misses its five-year window, oppose any lengthening of the mandatory review cycle.Advocates Plan Senate Defense
Nearly identical legislation passed the House in June 2016 but never reached the Senate floor for consideration. Bishop, Costa and Cuellar were three of the seven Democrats who voted for the ozone proposal when it passed the House.
The ozone bill is likely to be the target of fierce criticism by environmental and public health advocacy organizations, such as the Natural Resources Defense Council and the American Lung Association, which nicknamed the bill the “Smoggy Skies Act” during House consideration last year.
Paul Billings, senior vice president for advocacy at the American Lung Association, told Bloomberg BNA in early January that health advocates planned to reach out to senators on both sides of the aisle to explain the importance of strong ozone standards based on public health considerations.
Congressional Republicans have targeted several Obama-era environmental rules using the Congressional Review Act, which allows for the consideration of resolutions of disapproval of recently issued regulations under expedited floor procedures.
But the 2015 ozone standards were issued well outside the eligibility window for the CRA, meaning that it will take 60 votes in the Senate to overcome a filibuster.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030335&vname=dennotallissues&fn=105030335&jd=105030335
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Lawmakers Reintroduce Bill To Delay, Reform NAAQS Process
Feb 3, 2017 | Inside EPA
A group of mostly GOP senators has reintroduced a bill that would extend EPA's process for setting national ambient air quality standards (NAAQS) and ease future limits, legislation that could win approval given its support from top Republican leaders, including House Speaker Paul Ryan (R-WI).
S. 263, introduced Feb. 1 by Sens. Shelley Moore Capito (R-WV), Jeff Flake (R-AZ), and Joe Manchin (D-WV) seeks to extend the NAAQS review cycle from the current five years to 10 years, while introducing new factors that could limit the stringency of the limits for the six standards, with a particular focus on ozone.
Reps. Pete Olson (R-TX), Bill Flores (R-TX) and Bob Latta (R-OH) Feb. 1 introduced the House companion H.R. 806.
While the legislation did not advance in the last Congress, it could see action in the current Congress given backing from Ryan. His election-year agenda cited previous versions of the legislation to address concerns that, in some cases, the NAAQS review cycle meant that EPA was developing new standards before states had implemented prior versions.
“It takes longer than five years to implement these standards, so the statute forces EPA to develop a new standard before the agency has gotten very far implementing the old one, and without knowing whether a new standard is even needed,” Ryan wrote. “To address these concerns, limited changes have been proposed to facilitate more streamlined, effective implementation of standards and eliminate premature and unnecessary rulemakings,” he said.
The legislation's review cycle extension would apply to all six NAAQS: ozone, particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide, and lead. Supporters say EPA rarely meets its five-year deadlines anyway, and has been sued by environmentalists to force court-ordered deadlines to complete reviews.
Environmentalists and Democratic lawmakers generally argue that extending the review cycle will just lead to even longer delays.
The bill would further prohibit any ozone NAAQS review before 2025, and extends the compliance date for states to meet EPA's toughened ozone NAAQS of 70 parts per billion (ppb), set in 2015. This would avoid duplicative requirements for states still implementing EPA's weaker ozone NAAQS of 75 ppb, set in 2008, the lawmakers say.
States' suggested designations of areas in “attainment” or “nonattainment” with the 2015 NAAQS would now be due in 2024, with EPA's final decisions on designations due in 2025, rather than October this year as currently foreseen, and state implementation plans (SIPs), outlining states' plans to attain the NAAQS, not due until 2026.
Under EPA's current proposed schedule, SIPs for areas classified in “moderate” nonattainment would be due in late 2019, with the first attainment deadline -- for “marginal” areas -- passing in late 2020. EPA has yet to finalize its proposed implementation rule for the 2015 ozone NAAQS, and is taking comment on the proposal until Feb. 13.
The bill would further base future NAAQS reviews on consideration of technical feasibility and also a report from EPA's Clean Air Scientific Advisory Committee (CASAC) on “any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of” the standards.
Until now, EPA has been allowed to consider only public health impacts in setting “primary” NAAQS, designed to protect public health, with a express Supreme Court prohibition on consideration of implementation costs, while industry groups and GOP lawmakers say costs are an important factor that should be considered.
The pending bill would require EPA to issue implementation guidance concurrently with new NAAQS, rather than years after issuance of a NAAQS as has been the pattern in the past. Permit applicants with applications deemed complete at the time a new NAAQS is promulgated would be allowed to comply with permit requirements relating to the NAAQS in effect when they filed their application.
Further, the bill would force EPA to prepare within two years a report on the impact of foreign-sourced air emissions on NAAQS attainment in general, and to report on the effectiveness of states' petitioning EPA under the air law for a regulatory exemption for foreign emissions beyond their control under air law section 179(B).
The Obama EPA in its proposal for implementation of the 2015 ozone NAAQS said it views section 179(B) as essentially applicable to areas experiencing pollution from areas bordering the United States, not emissions from further afield. Some states and industry groups are highly critical of this restriction, however.
https://insideepa.com/daily-feed/air-lawmakers-reintroduce-bill-delay-reform-naaqs-process
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Finding on Missing State Ozone Plans Clears Regulatory Freeze
Feb 3, 2017 | BNA Daily Environment Report
By Patrick Ambrosio
The EPA is taking action against 15 states and the District of Columbia that failed to submit required plans for controlling ozone pollution, in what is one of the few agency decisions to be issued during a governmentwide freeze on new regulations.
The agency, in a final rule scheduled for publication Feb. 3, issued “findings of failure to submit” to California, New York, Maryland and other states that haven't filed required plans under the 2008 ozone standards of 75 parts per billion. That regulatory determination triggers an obligation that the Environmental Protection Agency issue its own federal plans covering the missing plan elements, which including permitting regulations for Chicago, Washington, D.C., Philadelphia and other cities that don't meet the standards.
One of the Trump administration's first official actions was to issue a memo instructing federal agencies to halt the issuance of new regulations pending review by new political leadership. However, that freeze contained an exception for rules required by statutory or court deadlines.
The EPA in November reached a settlement with the Center for Biological Diversity and other environmental advocates, who sued the agency over an alleged failure to meet a Clean Air Act deadline for action against states that don't submit adequate plans (Ctr. for Biological Diversity v. McCarthy, N.D. Cal., No. 4:16-cv-4092, proposed consent decree filed 11/29/16).
In accordance with the new deadlines included in that settlement, EPA Administrator Gina McCarthy signed the final rule Jan. 19 before leaving her post in the administration.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030351&vname=dennotallissues&fn=105030351&jd=105030351
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Bill Gutting EPA Climate Authority Has 100-Plus GOP Co-Sponsors
Feb 3, 2017 | BNA Daily Environment Report
By David Schultz
A bill that would gut the EPA's authority on the issue of climate change has strong Republican support, garnering dozens of co-sponsors days after being introduced.
The bill, H.R. 637, would rewrite the Clean Air Act to clarify that the law does not grant the Environmental Protection Agency power to regulate greenhouse gases as a pollutant. It also states that “no Federal agency has the authority to regulate greenhouse gases under current law.”
Additionally, the law would require the EPA to seek approval from Congress to enact a regulation that would have any negative effect on employment. And it would nullify two signature Obama-era climate policies: regulations on carbon dioixde emissions from power plants and on methane emissions from the oil and gas industry.
Rep. Gary Palmer (R-Ala.) introduced the legislation last week and as of Feb. 2, it already has 110 cosponsors, including nearly every Republican from Texas. Palmer introduced similar legislation in 2015 but, despite garnering 152 cosponsors, the bill never came up for a hearing and companion legislation was never introduced in the Senate.
Palmer's bill was assigned to four committees in the House. Staff members with three of these committees told Bloomberg BNA they have no plans as of yet to take up the bill.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=105030348&vname=dennotallissues&fn=105030348&jd=105030348
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Gorsuch's Chevron, Originalist Views Suggest Mixed Environmental Record
Feb 2, 2017 | Inside EPA
By Abby Smith
Appellate court judge Neil Gorsuch, President Donald Trump's Supreme Court nominee, is highly skeptical of courts granting agencies deference to interpret statutes and is committed to adhering to the “original” meaning of the Constitution -- qualities that likely will not endear him to the environmental community, sources say.
But those qualities might not always result in rulings that weaken environmental protections. For example, his views could offer less deference to federal actions that soften such rules, and they could in some instances protect state regulations from challenges.
Even so, Gorsuch also has had a high bar for plaintiffs to show standing to challenge agency actions, an issue that could be particularly harmful for environmentalists.
“Given his reluctance to engage on the merits in these cases when they can be avoided on procedural grounds, it seems as though he is unlikely to be viewed as a champion of environmental protection by advocacy groups,” writes Denise Grab of New York University Law School's Institute for Policy Integrity (IPI).
Gorsuch, who Trump announced Jan. 31 as his pick for the high court, has a limited number of environmental rulings, in part because the U.S. Court of Appeals for the 10th Circuit does not receive as many such cases as the D.C. Circuit.
But IPI's Grab notes that his environmental-, energy- and natural resources-related rulings show a mixed record in terms of upholding environmental rules but a consistency in closely adhering to statutory text. Thus, she suggests he could have an equally mixed environmental record on the high court.
“[A] number of his rulings suggest he may take positions that could be consistent with environmental protection, depending on which governmental actors are instituting environmental rules and how they go about doing so.”
Industry attorney Thomas Lorenzen has a similar view, telling E&E News, “one can't really guarantee from Judge Gorsuch's legal philosophy how cases will turn out.”
He added: “You look at the cases he decided on the 10th Circuit, just as many of them were sort of pro-EPA as were anti-EPA. He goes where the law takes him.”
If confirmed, Gorsuch could play a key role in determining the fate of major Obama EPA rules such as its power plant greenhouse gas rule known as the Clean Power Plan and the Clean Water Act jurisdiction rule. Over the long term, he could be asked to rule on numerous climate and environmental rules from the next several administrations.
Of crucial importance is Gorsuch's view of agency deference. In an August opinion in Gutierrez-Brizuelo v. Lynch, Gorsuch strongly criticized Chevron deference, the doctrine penned by the late Justice Antonin Scalia that permits “reasonable” agency interpretations of ambiguous statutes.
“[R]ather than completing the task expressly assigned to us, rather than 'interpret[ing] . . . statutory provisions,' declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision,” Gorsuch wrote in a concurring opinion, in which he expressed his personal views on the doctrine. He also wrote the majority opinion in the case.
“In this way, Chevron seems no less a judge-made doctrine for the abdication of the judicial duty,” Gorsuch added.
GOP Praise
Some Republicans are praising Gorsuch's rejection of Chevron, which they view as allowing Obama agencies like EPA to promulgate sweeping regulations.
Chevron played a key role in the Obama EPA's defense of the Clean Power Plan. The agency relied on that doctrine to defend its statutory interpretation in a threshold challenge to its authority to issue the rule, as well as its expansive interpretation of how it crafted the rule's GHG targets.
In a Feb. 1 letter to Senate leaders, a coalition of 20 Republican attorneys general (AGs) -- led by West Virginia AG Patrick Morrisey -- praise Gorsuch for writing “about the judiciary's obligation to act as a meaningful check on federal agencies that exceed their authority and to interpret the Constitution according to its original public meaning.”
They write: “In short, we are convinced that, as the next Supreme Court Justice, Judge Gorsuch will be committed to resisting unlawful government overreach, respecting the democratic process, and protecting individual liberties.”
However, IPI's Grab notes that the 1984 Chevron ruling was originally seen as harmful to the environment, but has since given both Democratic and Republican administrations more leeway to craft their preferred policies. “[I]t is not automatically clear whether deferring to agencies will result in more or less environmental protection. It depends on whether the regulation in question results in more or less stringent requirements,” Grab writes.
Even so, it seems unlikely that Gorsuch would uphold a strict environmental rule using Chevron. In his Gutierrez concurrence, he clearly argued that the doctrine allows executive overreach, usurping judicial power to interpret laws.
“Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive),” Gorsuch wrote.
He continued: “Add to this the fact that today many administrative agencies 'wield[] vast power' and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix.”
Chevron, he charged, has “added prodigious new powers to an already titanic administrative state.”
IPI's Grab, however, points to a 2010 case regarding a related deference issue -- the Auer doctrine that directs judges to generally defer to agencies' interpretations of their own regulations. In that case, United States v. Magnesium Corp., Gorsuch held that EPA could alter its interpretation of a vague Resource Conservation and Recovery Act regulation without going through the notice and comment process.
That ruling, Grab writes, suggests that Gorsuch “may generally be comfortable with an agency changing its mind on earlier interpretations, which could become relevant if EPA and other agencies decide to change their policies going forward.”
And Lorenzen told E&E News that he expects Gorsuch could be “more aggressive” in interpreting the Clean Air Act and Clean Water Act. He added that due to Gorsuch's views on Chevron and his strict view of the separation of powers, he would likely adhere to Scalia's statement in the 2014 ruling in Utility Air Regulatory Group v. EPA, in which he noted “that the court is going to demand clarity from Congress when EPA is using a statute to try and find powers to regulate vast swaths of the economy.”
He added that Gorsuch is “going to be looking for clear direction and not, I suspect, be willing to give EPA the benefit of the doubt where the language is too vague.”
While Gorsuch's Gutierrez concurrence is highly skeptical of allowing agencies to interpret ambiguous legislative text, he adds that in a world without Chevron, “courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.”
Similarly, conservative legal scholar Adrian Vermeu of Harvard Law School tweeted Feb. 1: “A dose of legal realism: deference to agency interpretations will persist, whatever the nominal rules. Judges know how much they don't know.”
Procedural Hurdles
Beyond Gorsuch's views of agency deference, IPI's Grab warns that environmentalists should be wary of his history of relying on “procedural hurdles,” including setting a high bar for standing, to avoid “wading into the merits on environmental and public lands cases.”
For example, Grab cites a 2015 ruling in Backcountry Hunters and Anglers v. U.S. Forest Service, where Gorsuch set an “atypically high bar” for standing, finding the outdoor group could not establish standing “because if the order they challenged as being too lenient was struck down, the agency would revert to an earlier, even less-strict version of the order, and so the organization's conservation goal would not be advanced.”
Grab notes that Gorsuch did not acknowledge the potential of the court to remand the rule without vacatur, though the outdoor group also did not appear to raise this argument.
She suggests that approach is “potentially worrisome to any organization that might want to challenge an agency's tightening of a regulation as not being comprehensive enough.” Grab also cited several other environmental cases where Gorsuch applied procedural bars to avoid moving to the merits of the suits.
Grab also identifies several cases where Gorsuch addressed the relationship of federal and state environmental law, including a 2015 ruling upholding Colorado's renewable energy standard after rejecting a challenge that it violates the Constitution's dormant Commerce Clause.
Gorsuch's ruling, which implied a general skepticism of the dormant Commerce Clause, could give comfort to environmentalists and supporters of clean energy policies, Grab suggests.
“The dormant Commerce Clause arises frequently in cases where a state wants to institute a program with stronger environmental protections than other states, for example with California’s low carbon fuel standard,” Grab writes.
She also notes that Gorsuch's record on cases involving federal preemption of state tort law are mixed in terms of upholding the state program, though his rulings “tend to hew closely to the statutory text.”
“Like the dormant Commerce Clause, these federal preemption issues will be likely to arise when states want to institute policies that may be more sweeping than federal laws (for example, issues of Federal Power Act preemption have arisen with respect to state clean energy standards),” Grab notes.
https://insideepa.com/daily-news/gorsuchs-chevron-originalist-views-suggest-mixed-environmental-record
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Senator Doubts Air Law CO2 Enforcement Under Sessions
Feb 2, 2017 | Inside EPA
Sen. Sheldon Whitehouse (D-RI) is citing past comments from Sen. Jeff Sessions (R-AL) -- President Donald Trump's nominee to be the next attorney general (AG) -- questioning the need for carbon dioxide (CO2) regulation as an indication that Sessions will not pursue Clean Air Act enforcement for greenhouse gas emissions if he wins Senate confirmation.
“This is the man who wants to be Attorney General of the United States, who says he is going to follow the law. There is a Supreme Court case on point that says carbon is a pollutant. What does he say? Carbon pollution is CO2, and it is not really a pollutant. That is just plain not the law,” said Whitehouse in a Feb. 1 Senate floor speech.
The Senate Judiciary Committee approved Sessions' nomination in a 11-9 party line vote on Feb. 1, advancing his nomination to the full Senate for consideration. He is widely expected to win confirmation as no Republicans are expected to defect and vote against him.
Sen. Susan Collins (R-ME), who has said she will vote against Betsy DeVos' nomination as education secretary, introduced Sessions at his confirmation hearing and gave her support.
But Whitehouse's speech highlights that some Democrats have concerns that Sessions' prior comments pushing back on the need to regulate CO2 raise questions about how -- or whether -- he will enforce the Clean Air Act as AG, a role that oversees the Department of Justice, including its environmental enforcement division.
“In a 2015 interview with the Family Research Council, Senator Sessions said he was not even sure that global warming exists. That same year in a hearing with the EPA Administrator, Senator Sessions claimed that 'carbon pollution is CO2, and that's not really a pollutant; that's a plant food, and it doesn't harm anybody except that it might include temperature increases,'” said Whitehouse.
Whitehouse said that he Sessions at his confirmation hearing “whether, as Attorney General, he would make decisions in environmental cases based on scientifically accepted facts. Senator Sessions, to his credit, responded that he would and said that the 'theory' of global warming 'always struck me as plausible'.'
“Well, if he is confirmed, he will have to hold a lot of these fossil fuel companies accountable under our environmental laws, and I hope he will familiarize himself with the science that he committed to follow because I intend to hold him to his pledge,” the senator said.
https://insideepa.com/daily-feed/congress-senator-doubts-air-law-co2-enforcement-under-sessions
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Republicans Try a New Tack on Climate Change
Feb 3, 2017 | The New York Times
By Justin Gillis
Not long ago, many Republican officeholders had a simple answer when asked about the changing climate: What changing climate?
But the public began to notice the heat waves and the torrential rains and the tidal flooding. So then we had the “I am not a scientist” phase, with one lawmaker after another fending off climate questions with that formula.
That drew such ridicule that Republicans critical of climate science had to come up with a more nuanced answer. Several variations on the new approach were on display recently during confirmation hearings for some of President Trump’s cabinet nominees.
“Science tells us that the climate is changing and human activity in some manner impacts that change,” Scott Pruitt, the Oklahoma attorney general nominated to run the Environmental Protection Agency, told a Senate committee. “The human ability to measure with precision the extent of that impact is subject to continuing debate and dialogue, as well they should be.”
Let us ponder the craftsmanship of that second sentence.
“With precision” is the key phrase, of course, and it renders the statement almost axiomatically true. Do we have trouble taking the precise temperature of an entire planet and then divining, for a given period, exactly how much of the change in that temperature is caused by human activities?
Well, yes.
Anybody who did not know better might come away thinking there is room to doubt whether humans are the main cause of global warming. Mr. Pruitt did not actually say that, of course — nowadays, hard-core climate denial provokes a furious response from Democrats in Congress and mild protest even from a few Republicans.
Thus Mr. Pruitt and the other Trump nominees labored to avoid overt denial while signaling to their allies that there is enough doubt to justify inaction on emissions or even rolling back steps the Obama administration took.
“They’re just trying not to look crazy, because if they look too crazy, then Susan Collins” — a Republican senator from Maine — “and a few of the moderate Republicans might jump ship,” said Raymond T. Pierrehumbert, an American climate scientist who holds a chair at Oxford University, in Britain.
In interviews, Dr. Pierrehumbert and several other experts said the public should not be fooled. The deep consensus among climate scientists, arrived at through decades of research, is that human activity is the cause of most of the planetary warming of recent decades, and probably all of it.
What is the evidence?
For starters, an unassailable body of physics tells us that if you add carbon dioxide and other greenhouse gases to the atmosphere, they will trap extra heat near the surface of the planet, a prediction so basic it was first made in the 19th century.
“People have been trying, but nobody has really shaken the foundations of the theory in all that time,” Dr. Pierrehumbert said.
Emissions have soared in the modern era, and as predicted, the Earth is heating up. That would be obvious just from all the land ice that is melting, but of course, we have had thermometers for centuries now. They show that the Earth has warmed roughly 2 degrees Fahrenheit since the late 19th century, a large number for the surface of a planet.
With just those facts, you have a powerful circumstantial case that human activities are the cause of global warming. But we have more: Sophisticated computer analyses of the climate confirm it, finding that no factor other than the human release of greenhouse gases is large enough to explain the recent warming.
What are the soft spots in the theory?
The biggest is that natural factors could in principle be causing the climate to change, as Mr. Pruitt implied. Suppose, for example, that the sun were to start putting out a lot more radiation; that would definitely warm the Earth.
But we have satellites keeping a close eye on the sun, and it has not changed nearly enough to be the culprit. Scientists have looked closely at all the possible natural factors, in fact, and they are not adequate to explain the warming.
“Of all the natural drivers, and everything we know that works on long time scales that has ever affected climate in the past, all those things have been ruled out,” said Drew Shindell, an atmospheric scientist at Duke University. “Beyond a reasonable doubt, it has to be human activities.”
The most important uncertainties are not really about the cause of global warming — we are the cause — but in trying to forecast how big the coming changes will be.
If emissions continue at a high level but the Earth turns out to be less sensitive to greenhouse gases than currently believed, that would give humanity a few extra decades to come to grips with the situation. But it is not a get-out-of-jail-free card: If we keep burning fossil fuels in that time, scientists say the planet will still undergo profound, threatening changes.
On the other hand, if the Earth turns out to be especially sensitive to the gases and if we permit runaway emissions growth, some research suggests that huge parts of the world could eventually get so hot as to be uninhabitable by large mammals.
Recall that the large mammals include human beings. “People tend to think of climate change as not being of the same magnitude as nuclear warfare, but at the high end, it’s arguably worse,” Dr. Pierrehumbert said.
So, despite some genuine uncertainties, the risks are extraordinary, and the moral case for action is pretty clear: We have to get to zero emissions, the sooner the better. Mr. Trump’s nominees have so far displayed scant willingness to come to grips with that.
Perhaps surprisingly, though, the congressional hearings did offer glimmers of hope.
Rex W. Tillerson, who won confirmation on Wednesday as Mr. Trump’s secretary of state, implied that he might try to keep the nation committed to a big international deal on climate change reached in Paris in 2015.
But the most interesting statements came from Rick Perry, Mr. Trump’s nominee to head the Department of Energy. Under questioning, Mr. Perry, the former Texas governor, was surprisingly positive about the role the federal government might play in developing advanced clean-energy technology.
Many people — Bill Gates among them — see this as the most urgent issue. Renewable energy and greater use of natural gas are helping lower emissions in the short run, but if we do not invest heavily in research and development now, we may not have the technology we will eventually need to get to zero emissions.
People like Mr. Gates and the entrepreneur Elon Musk are working on Mr. Trump. If the president’s mind is really open on global warming, as he said after the election, perhaps he could also sit down with a few of our brightest climate scientists.
“If we always have to go back and debate the facts, we’re never going to get to the solutions,” said Ken Caldeira, a California climate expert who has helped to educate Mr. Gates. “Can’t we at least start with the facts and go from there?”
https://www.nytimes.com/2017/02/02/science/climate-change-republicans.html
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