Preview Newsletter
AM ACC 3/10/2017
-
President Trump to Name Three Nominees for FERC
Mar 9, 2017 | Wall Street Journal
By Amy Harder and Erin Ailworth
President Donald Trump will soon nominate three new commissioners to the Federal Energy Regulatory Commission, which has been unable to conduct most business because it has too few leaders, according to multiple people familiar with the move. -
Senate Aide Named a Top Adviser to EPA Head on Climate, Clean Air
Mar 10, 2017 | BNA Daily Environment Report
By Dean Scott
A top Senate aide's recent move to majority counsel at the Environment and Public Works Committee was only a pit stop: Mandy Gunasekara now heads to the Environmental Protection Agency to advise its new administrator on air and climate issues. -
(ACC Mentioned) Senators Question Science Behind Agency Regulatory Decisions
Mar 10, 2017 | BNA Daily Environment Report
By Cheryl Bolen
Arguments over regulatory decisions often come down to science, with industry distrustful that agencies are using the best available science and agencies wary of possibly biased industry analyses. -
Degreasing Chemical Concerns Spur Thousands of State Reviews
Mar 10, 2017 | BNA Daily Environment Report
By Sylvia Carignan
States are finding dangerous concentrations of a degreasing chemical in indoor air in reviews of thousands of contaminated sites. -
EU Watchdog Spotlights 50 Chemicals That Could Be Regulated
Mar 10, 2017 | BNA Daily Environment Report
By Stephen Gardner
Environmental group the International Chemical Secretariat added 50 substances to its Substitute it Now! (SIN) list of hazardous chemicals, which spotlights chemicals that could be identified for regulation under the European Union's REACH law. -
Trump Order Expected To Give EPA Choice To Scrap Or Replace 'Power Plan'
Mar 9, 2017 | Inside EPA
By Lee Logan, Dawn Reeves and Doug Obey
President Donald Trump's planned executive order targeting EPA's greenhouse gas rule for existing power plants is expected to allow the agency to determine whether to entirely scrap the rule or issue a revised version that significantly scales back its requirements. -
Marcellus Shale Well Case Puts Zoning in Spotlight
Mar 10, 2017 | BNA Daily Environment Report
By Leslie A. Pappas
A zoning case soon to be decided by the Pennsylvania Supreme Court could have wide implications for Marcellus Shale drilling and local governments throughout the state (Gorsline v. Bd. of Sup. of Fairfield Twp., Pa., No. 67-MAP-2016, oral arguments 3/8/17). -
Bill Reintroduced to Regulate Pennsylvania NatGas Gathering Lines
Mar 9, 2017 | Natural Gas Intelligence
By Jamison Cocklin
Pennsylvania state Sen. Lisa Baker has reintroduced legislation that would give state regulators more oversight over rural natural gas gathering pipelines that are not already regulated by the federal government. -
Tillerson Won’t Participate in Keystone Review, State Department Says
Mar 9, 2017 | PoliticoPro
By Ben LeFebvre
Secretary of State Rex Tillerson is not participating in matters related to the proposed Keystone XL pipeline, the State Department said today. -
DOE Economist Talks SPR Exports, Storage and Sales
Mar 10, 2017 | Platts
By Allen Reed
The presenter who arguably received the best questions at Wednesday’s Crude Oil Quality Association meeting in New Orleans was the US Department of Energy’s economist, Kenneth Vincent. -
A Father of Fracking Seeks to Emulate U.S. Shale Boom in Alaska
Mar 10, 2017 | BNA Daily Environment Report
By Alex Nussbaum
A pioneer of the U.S. shale revolution wants to take fracking to America's final frontier. Success could help revive Alaska's flagging oil fortunes. -
Fractious Fractions Teased from Crude Oil
Mar 9, 2017 | Chemical & Engineering News
By Mark Peplow
Crude oil is an unruly soup of tens of thousands of organic compounds, and this diversity makes it difficult to pick out individual molecules from the crowd for analysis using standard tools such as mass spectrometers. -
Tax Reform Group Urges Ryan to Back RMP Repeal
Mar 10, 2017 | Inside EPA
Grover Norquist, the influential leader of Americans for Tax Reform (ATR), is urging House Speaker Paul Ryan (R-WI) to quickly advance a pending Congressional Review Act (CRA) disapproval resolution to repeal the Obama EPA's overhaul of its industrial facility accident... -
Experts to Trump: Don't Trip on 'Turf Battles'
Mar 10, 2017 | E&E Daily
By Blake Sobczak
President Trump should avoid shuffling government programs for sharing cybersecurity intelligence with the private sector, experts told House lawmakers yesterday. -
Bill Exempts Oil, Natural Gas Industry from WV Chemical Tank Safety Law
Mar 9, 2017 | Charleston Gazette-Mail
By Ken Ward Jr.
More than two-thirds of the chemical storage tanks covered by a safety law passed after the Freedom Industries spill into the Elk River would be exempt from that law, under a bill now moving through the West Virginia House of Delegates. -
(ACC Mentioned) If Congress Secides to Spend $1 Trillion on Infrastructure, Keep Tabs on Who Gets It
Mar 9, 2017 | Scholars and Rogues
The 2017 report card of the American Society of Civil Engineers, posted today, gives the infrastructure on which America depends for commerce, defense, recreation, flight, food, water, waste — almost everything — an overall grade of D+. -
(ACC Mentioned) House Panel Advances Science Transparency, EPA Science Board Bills
Mar 10, 2017 | BNA Daily Environment Report
By Rachel Leven
The EPA would have to publicly release more data, limit use of certain science, and alter the makeup of a board that gives the agency scientific advice under two bills a House committee advanced on March 9. -
(ACC Mentioned) Lawmaker Presses Ahead with Science in Rulemaking Bill
Mar 10, 2017 | E&E Daily
By Arianna Skibell
Senate Homeland Security and Governmental Affairs Committee member James Lankford (R-Okla.) is seeking advice from former government officials and scientists in an effort to codify best practices for science in rulemaking. -
(ACC Mentioned) Senators Eye Legislation Requiring Agencies To Use 'Best Available Science'
Mar 9, 2017 | Inside EPA
By Maria Hegstad
The Senate Homeland Security and Government Affairs Committee is weighing how to codify requirements in executive orders that EPA and other federal agencies utilize only the “best available science” in their regulatory decisionmaking, -
EPA Will Consider All Options as It Looks at Budget, Pruitt Says
Mar 10, 2017 | BNA Daily Environment Report
By Nushin Huq
The EPA is in the early stages of talking to the White House about its budget, but these discussions have been largely positive, agency administrator Scott Pruitt said. -
Scott Pruitt Will Have to Change EPA Policies—And Culture
Mar 9, 2017 | The Hill - Congress Blog
By Merrill Matthews
Scott Pruitt may face the biggest challenge of all of President Donald Trump’s Cabinet appointments. That’s because the Environmental Protection Agency, more than any other federal agency, is dedicated to a cause rather than the public. -
Trump Aides Weighing Staying in Paris Deal, Rejecting Obama Pledge
Mar 9, 2017 | PoliticoPro
By Andrew Restuccia
Trump administration officials are considering a plan to remain part of the nearly 200-nation Paris climate change agreement, while weakening former President Barack Obama’s pledge to reduce U.S. greenhouse gas emissions, multiple sources told POLITICO. -
A 'Freedom Caucus' for the Environment?
Mar 10, 2017 | E&E Daily
By Hannah Hess
Republican Rep. Carlos Curbelo fired back yesterday when U.S. EPA Administrator Scott Pruitt dismissed the link between carbon dioxide and global warming (Greenwire, March 9). -
This Climate Lawsuit Could Change Everything. No Wonder the Trump Administration Doesn’t Want It Going to Trial
Mar 9, 2017 | Washington Post
By Chelsea Harvey
A groundbreaking climate lawsuit, brought against the federal government by 21 children, has been hailed by environmentalists as a bold new strategy to press for climate action in the United States.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
-
President Trump to Name Three Nominees for FERC
Mar 9, 2017 | Wall Street Journal
By Amy Harder and Erin Ailworth
President Donald Trump will soon nominate three new commissioners to the Federal Energy Regulatory Commission, which has been unable to conduct most business because it has too few leaders, according to multiple people familiar with the move.
Mr. Trump is poised to tap Robert Powelson, a member of the Pennsylvania Public Utility Commission; Kevin McIntyre, a partner and head of the energy practice at law firm Jones Day; and Neil Chatterjee, top energy adviser to Senate Majority Leader Mitch McConnell (R., Ky.), to be commissioners.
The Federal Energy Regulatory Commission, an independent government agency, regulates the electricity grid, interstate pipelines and other energy infrastructure. The nominations need approval from the Senate.
A White House spokeswoman declined to comment.
Speaking at an energy conference in Houston Thursday, Mr. Powelson said he is among the people the Trump administration has contacted about filling the vacant commissioner roles.
“If the president were to call me and ask me about it I’d be honored to serve, but you know at this point those decisions haven’t been made,” Mr. Powelson said on the sidelines of CERAWeek, where he spoke on a panel about electric market structure.
During that discussion, Mr. Powelson, who is also president of the National Association of Regulatory Utility Commissioners, at one point remarked, “If I were FERC commissioner for a day …” – a purely tongue in cheek comment, he said.
But his fellow panelist, Andrew Ott, president of of the PJM Interconnection, still wished him luck. “I don’t even know if you need luck, but good luck,” Mr. Ott said. “We’re all pulling for you.”
Since early February, FERC has faced an unprecedented freeze of most major business when one of its three remaining commissioners resigned, leaving just two.
The agency, which usually has five commissioners, typically needs at least three to approve major energy projects. After a flurry of 11th-hour approvals, a few big projects remain in limbo, including a proposed natural-gas pipeline and a proposed utility merger.
It could be at least a few months before the Trump administration and Congress can work through the process to nominate and appoint more commissioners.
FERC, whose history goes back to the 1920s, has never been in a situation in which it had just two commissioners until last month, according to a spokeswoman for the agency.
https://www.wsj.com/articles/president-trump-to-name-three-nominees-for-ferc-1489091298
-
Senate Aide Named a Top Adviser to EPA Head on Climate, Clean Air
Mar 10, 2017 | BNA Daily Environment Report
By Dean Scott
A top Senate aide's recent move to majority counsel at the Environment and Public Works Committee was only a pit stop: Mandy Gunasekara now heads to the Environmental Protection Agency to advise its new administrator on air and climate issues.
The committee aide will serve as a senior policy adviser in the EPA administrator's office beginning March 20, several Senate aides confirmed to Bloomberg BNA March 9.
Gunasekara is currently majority counsel for the new Environment and Public Works chairman, Sen. John Barrasso (R-Wyo.); her last day with the committee is March 17. She will be among a handful of senior advisers reporting to Scott Pruitt, the former Oklahoma attorney general confirmed to head the EPA.
Pruitt's incoming policy adviser has worked for the environment panel since 2015, when then-Chairman James Inhofe (R-Okla.) named her to serve as the panel's Clean Air Act and Climate Change counsel. Barrasso took the mantle in January—Inhofe had to step down due to term limits Republicans impose on leadership in the Senate—and essentially brought Gunasekara with him as majority counsel.
Gunasekara is the latest former Inhofe aide to go to work for Pruitt, following Ryan Jackson, who will be Pruitt's chief of staff. Andrew Wheeler, another ex-Inhofe aide, is reportedly being considered for the No. 2 job at EPA.
To her Senate and House peers, Gunasekara will always be remembered for her connection to a bit of winter theater on the Senate floor in February 2015. Inhofe tossed a snowball—underhanded and in the direction of Sen. Bill Cassidy (R-La.), who happened to be presiding over the Senate—to protest what he said were overly alarmist warnings of rising temperature and man-made climate change.
Though the idea was Inhofe's, the snowball featured in that stunt was brought to him by Gunasekara, who at the time had only been in her committee post for three weeks. The snowball deed was featured in a segment on “The Daily Show,” then hosted by Jon Stewart, with the video capturing Gunasekara seated just behind the senator as he cupped the snowball.http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851325&vname=dennotallissues&fn=106851325&jd=106851325
-
(ACC Mentioned) Senators Question Science Behind Agency Regulatory Decisions
Mar 10, 2017 | BNA Daily Environment Report
By Cheryl Bolen
Arguments over regulatory decisions often come down to science, with industry distrustful that agencies are using the best available science and agencies wary of possibly biased industry analyses.
“The challenge that we face is trying to trust [the science], and to say how can we get a chance to do a good evaluation,” Sen. James Lankford (R-Okla.) said at a hearing held to examine the use of science in the rulemaking process.
On March 8, Lankford introduced the Better Evaluation of Science and Technology Act, which would require all federal agencies to apply the same scientific standards found in the Toxic Substances Control Act (TSCA).
In determining whether the science is the best available, agencies should consider whether the information has been peer-reviewed by an independent third party, its conclusions are verifiable and reproducible, and data are transparent and publicly available, Lankford said.
Bias or Expertise?
Nancy Beck, senior director of regulatory science policy at the American Chemistry Council, said peer review could benefit from improvements.
During one peer review panel, for example, a good study funded by industry was completely dismissed because it was funded by industry, with no evaluation of the quality of the data, Beck said.
“Of course you need to address conflicts and biases, but you need the breadth and the depth and the expertise,” Beck said. “If you're reviewing something about a manufacturing process and you have nobody that understands the manufacturing process, I don't think that peer review is going to end up being very good.”
The TSCA legislation, which her organization supports, requires different representations on review panels, including animal welfare, labor and industry, Beck said.
However, in putting together its panel for industry representation, the Environmental Protection Agency has chosen two people from the pharmaceutical industry who do not understand the chemical manufacturing process, Beck said.
Problem with Representation
Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said one problem with representation on a peer review panel is that people are there to represent a particular interest. “They are no longer peer reviewers,” he said.
“If they're there because they have particular expertise, I don't have a problem,” Rosenberg said. “But if you say, ‘I'm here as an industry reviewer, I am here to represent the interests of industry or NGOs,’ then I have a real problem—that's not a peer review to me.”
In addition to peer reviews, Lankford said he was struggling to balance transparency and the ability to reproduce results with privacy and proprietary data concerns.
Rosenberg said he did not agree that raw data are needed. Confidentiality is not just needed for public health records, but for business information and intellectual property, which gets complicated quickly, he said.
Question of Trust
Rather than raw data, panels should review the details of how the data were collected, the provenance of the study and the modeling process, Rosenberg said.
Industry would like to do alternative analyses of raw data, but interpreting those results, unless they are put back into exactly the same peer-review process that the agency used, is almost impossible, Rosenberg said.
The difficulty there is that anyone putting in a new analysis would start a new round of peer review, “and you just stay in peer review forever,” he said.
Beck, on the other hand, said the public trust is eroding in science and not every study is reliable. “But if you want to have trust and confidence in your regulatory decisions, you need to be as transparent as you can absolutely be about that underlying data,” she said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851347&vname=dennotallissues&fn=106851347&jd=106851347
-
Degreasing Chemical Concerns Spur Thousands of State Reviews
Mar 10, 2017 | BNA Daily Environment Report
By Sylvia Carignan
States are finding dangerous concentrations of a degreasing chemical in indoor air in reviews of thousands of contaminated sites.
In some states, many properties—often dry cleaners and gas stations as well as residential and industrial sites—have previously been assessed for trichloroethylene, or TCE. The chemical solvent can migrate from contaminated groundwater up into soil and indoor air through a process called vapor intrusion, or sub-surface intrusion.
In Massachusetts, about one in four of the sites state officials are assessing for TCE need “further work,” though that may not indicate unsafe levels, said Paul Locke, assistant commissioner for the state's Bureau of Waste Site Cleanup.
“The problem is not as bad as we had feared, perhaps, but we are finding that there are older sites that still have elevated levels and impacts of concern,” he said.
In Michigan, officials estimate more than 3,000 properties will need to be tested for unsafe levels of TCE.
Toxicity Data Spurs Reviews
The chemical's levels of concern, which the Environmental Protection Agency revised in 2011, led states to take a second look at some sites and ask whether people should be evacuated from buildings where high concentrations of the chemical are found.
“We've been doing vapor intrusion work for many, many years,” said Susan Leeming, a division director under Michigan's Department of Environmental Quality. “The difference now is that we have better technologies where we can detect lower levels of these compounds.”
According to the National Institute of Environmental Health Sciences, companies are developing improved sensors that will be able to detect TCE at concentrations of 20 parts per trillion by volume.
Decades ago, the main concern was developing cancer from long-term exposure to the chemical. Short-term exposure to TCE can also cause liver and kidney damage and affect the nervous system, according to the Agency for Toxic Substances and Disease Registry.
But states’ environmental and health officials are now concerned about trichloroethylene's short-term effects on pregnant women and the development of their babies.
“I don't know of any other contaminant that has the dramatic change in toxicity that TCE has,” said David Gillay, partner at Barnes and Thornburg LLP in Indianapolis.
Though the risk of getting cancer from TCE initially drove remedial action, non-cancer effects now drive that risk, he said.
States’ Policies Vary
States vary widely in their approach to potentially unsafe sites. Michigan is mainly selecting potential sites by their current use.
“We know we've got a couple thousand dry cleaners, a thousand gas stations,” Leeming said.
The state has evacuated some sites after finding dangerous levels of TCE and other volatile organic compounds such as vinyl chloride, Leeming said.
Massachusetts is selecting sites from a database of locations that had contaminated groundwater. When dangerous levels of TCE are found, Locke said the state will move in special air purifiers within 24 to 48 hours instead of opting for evacuation and eventual cleanup.
The EPA has not dictated whether sites with unsafe levels of TCE should be evacuated. The agency's silence has fostered inconsistency among states, Gillay said.
Minnesota is using screening values developed by the EPA to look at TCE contamination by vapor intrusion at residential sites. A lifetime exposure at or below 2 micrograms per cubic meter is considered safe.
In Minnesota, if TCE is found below the sub-slab of a residence at concentrations above 20 micrograms per cubic meter, state officials recommend mitigation.
Massachusetts considers concentrations above 6 micrograms of TCE per cubic meter in indoor residential air to be an acute health concern.
Oregon's new pilot program to review its site-monitoring process includes an assessment of potential vapor intrusion. The program will also look at cost-recovery policies and lasts for the remainder of the year.
The pilot program covers only 30 sites. State officials there don't anticipate “re-opening” waste sites administratively to look for vapor intrusion.
“We've had vapor intrusion protocols in place for close to 10 years,” said Bruce Gilles, a program manager on the Oregon Department of Environmental Quality's vapor intrusion guidance team. “We're comfortable with where we're at with the vapor pathway.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851328&vname=dennotallissues&fn=106851328&jd=106851328
-
EU Watchdog Spotlights 50 Chemicals That Could Be Regulated
Mar 10, 2017 | BNA Daily Environment Report
By Stephen Gardner
Environmental group the International Chemical Secretariat added 50 substances to its Substitute it Now! (SIN) list of hazardous chemicals, which spotlights chemicals that could be identified for regulation under the European Union's REACH law.
Jerker Ligthart, senior adviser to the group, known as ChemSec, said the aim of the SIN list is to predict the chemicals that the European Chemicals Agency could designate as “substances of very high concern” under REACH. The substance of very high concern label triggers certain information requirements for companies and can be the first step toward phaseout or restrictions on the use of substances.
The ChemSec SIN list now includes 912 substances identified by their Chemical Abstracts Service number. The SIN list contains significantly more substances than the European Chemicals Agency substances of very high concern list, which presently includes 173 substances.
ChemSec said that the update consists of additional Chemical Abstracts Service numbers for groups of substances already designated substances of very high concern by the European Chemicals Agency, and substances recently identified at EU level as carcinogenic, mutagenic or reprotoxic, a classification that makes them eligible for substance of very high concern status under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals).
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851321&vname=dennotallissues&fn=106851321&jd=106851321
-
Trump Order Expected To Give EPA Choice To Scrap Or Replace 'Power Plan'
Mar 9, 2017 | Inside EPA
By Lee Logan, Dawn Reeves and Doug Obey
President Donald Trump's planned executive order targeting EPA's greenhouse gas rule for existing power plants is expected to allow the agency to determine whether to entirely scrap the rule or issue a revised version that significantly scales back its requirements.
Trump's directive, expected next week, will require the agency to “remand, review, revise [the rule] if warranted,” says a source close to the administration.
Asked under what circumstances EPA would merely revise the rule -- known as the Clean Power Plan (CPP) -- instead of rescinding it, the source close to the administration said, “if it is better to have something in place.”
Such comments refer to arguments from some industry sources and other administration supporters that a significantly scaled back regulation would be a safer option that would be easier to defend in court from certain environmentalist lawsuits.
Also, the presence of some level of federal GHG regulation could preempt state common law claims against emitters. “By vacating the field of climate regulation, the EPA would make it much likelier for a state court to uphold a claim against a stationary source of greenhouse gases. This would be a disaster,” William Yeatman of the free-market Competitive Enterprise Institute (CEI) wrote in a blog post late last year.
If successful, such lawsuits “would open up virtually the whole of the U.S. economy to climate litigation for damages or injunctive relief, in potentially a number of states,” he said.
The planned order's mandate for EPA is gaining increasing attention as Trump moves closer to issuing it.
For example, E&E News cites a source briefed on the issue as saying the White House intends to terminate the existing rule, and not issue a new one, though the report noted that the order will instruct EPA to “revise or rescind” the CPP. Such language is intended to comply with the Administrative Procedure Act by allowing EPA and not the White House to determine the rule's fate, the report says.
The source also told E&E that the order will not address EPA's landmark 2009 endangerment finding, which is the foundation for all of the agency's climate change rules.
In addition to the CPP, the order is expected to target a companion GHG rule for new power plants while also directing the Interior Department to lift an Obama-era moratorium on new coal leasing. Several news reports have said it is not expected to address the Paris climate agreement.
An aggressive stance on the CPP would not be unexpected, given March 9 remarks from EPA Administrator Scott Pruitt that he does not “agree that [carbon dioxide] is a primary contributor to the global warming that we see.”
That statement is not consistent with mainstream climate change science.
Still Being Revised
But Myron Ebell, another official at CEI who led Trump's EPA transition team, says the order is still being revised so he would be cautious about believing claims on what is in the order.
“The whole process with all of the executive orders . . . has been very tightly held, and so a lot of people who speak with confidence about what is in it and when it is coming out, I would be suspicious of. They've done a really good job of keeping it under wraps,” he said.
However, he adds that if the order were to tell the Justice Department to stop defending the CPP in court and allow EPA to “take it from there, that sounds reasonable to me.”
Further, Paul Bledsoe -- a climate adviser in the Clinton White House now with the Progressive Policy Institute -- tells Inside EPA that whether the pending Trump order proposes a CPP “replacement is immaterial, essentially” because “the courts will determine what is going to happen here, and we already had the unbelievable specter of the Supreme Court staying the regulation. Listen, the courts have injected themselves in an unprecedented manner into this regulation already, and I expect them to continue.”
Yeatman and other opponents of the rule have cautioned against revoking it entirely.
One industry source earlier noted that a chief option to entirely scrap the CPP -- adopting challengers' argument that it is unlawful under the Clean Air Act's “section 112 exclusion” -- is a more risky option than issuing a new rule with limited GHG targets based on actions taken within a power plant's fenceline.
The exclusion argument refers to opponents' claims that air act section 111(d), which EPA used to write the rule, does not allow the agency to regulate power plants' GHGs because it already regulates their air toxics under section 112.
However, the industry source said that the U.S. Court of Appeals for the District of Columbia Circuit appeared skeptical of challengers' claims on the issue during September oral arguments.
Another knowledgeable source noted that even conservative D.C. Circuit Judge Brett Kavanaugh called the section 112 claims “a hall of mirrors.” If EPA thinks it could lose on the argument when any deregulatory effort goes back to the court, “they would be better off strategically to go ahead and do reasonable regulations” under section 111(d), the source says, referring to the “inside the fenceline” standards approach.
If EPA takes the 112 exclusion route to scrap the rule, “you may get your head handed to you” at the D.C. Circuit, says Bob Sussaman, a former EPA policy chief under Obama who is now a consultant.
The D.C. Circuit has yet to rule on the litigation targeting the CPP, and some power sector groups are asking the court to move challenges over the Obama EPA's denials of administrative petitions to reconsider the CPP into the main litigation challenging the rule's merits.
The court late March 8 granted an EPA request to give parties more time, until March 20, to weigh in on the consolidation request, suggesting it might not rule on the broader suit until after that date.
Supporters of the rule charge that the industry request is motivated by delay to give the administration more time to weigh its options on the regulation before any ruling in the broader suit.
'How They Defend That'
Another option to scrap the rule would be to agree with industry's claim in separate litigation challenging EPA's companion GHG rule for new power plants that the agency unlawfully failed to write a power sector-specific endangerment finding.
The 2009 finding relates only to motor vehicle emissions, but the Obama EPA argued it did not have to issue a new finding to regulate power plants.
Agreeing with industry's claims on that issue would undercut the legal basis for the new plant GHG rule, thus negating the legal requirement to issue any GHG rules for the sector.
However, Sussman and other supporters of EPA's climate rules say it could be legally risky to scrap the new plant GHG rule and other climate rules while retaining the 2009 GHG risk finding -- which eventually requires the agency to regulate GHGs from a host of industrial sectors.
“I am not sure how they defend that with the endangerment finding in place,” he says, expressing skepticism that it would be anything but a grueling legal battle to reverse course on that finding given current science on climate change.
But Sussman offers up the possibility that the main goal of the CPP attack is demonstrating political intent -- and that any associated legal weakness of the effort might be immaterial for the Trump administration.
“Another way to look at this [is] all they are really doing is fulfilling a campaign promise, and if three or four years from how none of this really comes to pass, somebody else will worry about that,” he says.
https://insideepa.com/daily-news/trump-order-expected-give-epa-choice-scrap-or-replace-power-plan
-
Marcellus Shale Well Case Puts Zoning in Spotlight
Mar 10, 2017 | BNA Daily Environment Report
By Leslie A. Pappas
A zoning case soon to be decided by the Pennsylvania Supreme Court could have wide implications for Marcellus Shale drilling and local governments throughout the state (Gorsline v. Bd. of Sup. of Fairfield Twp., Pa., No. 67-MAP-2016, oral arguments 3/8/17).
The case involves four residents of Fairfield Township, Lycoming County, who sued to prevent Inflection Energy LLC from constructing a natural gas well pad in a residential/agricultural-zoned district after the township's Board of Supervisors granted the company a conditional use.
The case gives the Supreme Court a chance to expand on its landmark 2013 decision in Robinton Township, et. al. v. Commonwealth, which invalidated part of a state law that sought to establish statewide standards for oil and gas, giving local governments more power over gas drilling in their townships. Oral arguments in Philadelphia on March 8 focused on whether a natural gas well operated by a private company could be considered a “public use” when making zoning decisions.
Lower courts fell on both sides of the issue. A Lycoming County judge sided with the residents—a signal that local zoning hearing boards could become the new battleground in opposing natural gas development, attorneys said at the time. The Commonwealth Court reversed, a decision widely considered a win for the natural gas industry.
‘Mold the Law’
The ultimate decision in this case “will mold the law on whether private natural gas development could be considered a ‘public’ facility for local zoning exemptions,” Diana A. Silva, an associate with Manko, Gold, Katcher & Fox, LLP, wrote in a January 2017 alert.
PennFuture attorney George Jugovic, who represented the landowners, argued that the board went too far when allowing the well as a “public use” because none of the residents in the district would benefit.
Justice Max Baer questioned Jugovic, saying, “You're making it the universal ‘not In my backyard’ argument.”
Chief Justice Thomas Saylor drew the focus away from larger constitutional issues, saying, “It seems to me that this is a land-use case.”
Inflection Energy attorney Susan Smith said the zoning hearing board “got it right on all levels” when it decided that the gas well was similar enough to other uses in the district, and should be permitted because there was no harm. “When there's no harm, it fits,” she said.
Justice Christine Donohue pressed Smith about the Commonwealth's Court's conclusion that the testimony against the well from residents at the zoning board hearing was too speculative to be considered evidence. In its decision, the Commonwealth Court concluded that the landowners “did not present any evidence to substantiate their concerns,” although they did “make statements.”
“I truly do not understand that conclusion,” Donohue said. “Citizens testified. How is that not evidence?”
“There was testimony, there was no evidence,” Smith replied, adding that an objector “merely raising a concern” is not enough. “It has to be real evidence, real proof of harm.”
The court did not say when it would render its decision.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851348&vname=dennotallissues&fn=106851348&jd=106851348
-
Bill Reintroduced to Regulate Pennsylvania NatGas Gathering Lines
Mar 9, 2017 | Natural Gas Intelligence
By Jamison Cocklin
Pennsylvania state Sen. Lisa Baker has reintroduced legislation that would give state regulators more oversight over rural natural gas gathering pipelines that are not already regulated by the federal government.
SB 488 would give the Pennsylvania Public Utility Commission (PUC) jurisdiction over Class 1 unconventional gathering lines. The lines are not public utilities and aren't regulated by the Federal Energy Regulatory Commission or the federal pipeline safety laws enforced by the Pipeline and Hazardous Materials Safety Administration (PHMSA). Under the bill, the PUC could adopt or modify regulations to cover the tens of thousands of miles of rural gathering lines in the state.
A Class 1 location is classified by PHMSA as an offshore area or any unit that has 10 or fewer buildings intended for human occupancy. PHMSA doesn't regulate Class 1 gathering lines based on its risk assessment model.
A single pipeline often has several different classes of lines on it depending upon the area it traverses. While PHMSA has jurisdiction over pipeline facilities it hands over inspection and enforcement duties to individual states. Pennsylvania only oversees pipelines regulated as public utilities, making it one of the only states in the country that doesn't regulate gathering lines.
"I believe the commonwealth should have the authority to exercise safety jurisdiction over these lines, which are prevalent in my Senate district and could be a risk to people, property and the environment," Baker said in a memo to lawmakers.
The legislation would allow the PUC to investigate reports of hazardous infrastructure, safety complaints and for compliance with state and federal laws. It would also require pipeline marking; incident reporting; minimum construction standards; better record keeping; leakage surveys, and damage prevention programs.
It would provide for penalties and assessments to help pay for the PUC's regulatory costs. The bill was referred to the Consumer Protection and Professional Licensure Committee on Monday.
Baker, who represents counties in Northeast Pennsylvania in areas of heavy Marcellus Shale development, introduced the bill last session. She also tried for similar legislation in 2011. Last year's bill had bipartisan support and was watched closely by the industry.
http://www.naturalgasintel.com/articles/109703-bill-reintroduced-to-regulate-pennsylvania-natgas-gathering-lines
-
Tillerson Won’t Participate in Keystone Review, State Department Says
Mar 9, 2017 | PoliticoPro
By Ben LeFebvre
Secretary of State Rex Tillerson is not participating in matters related to the proposed Keystone XL pipeline, the State Department said today.
Tillerson, the former CEO of Exxon Mobil, recused himself from State's review of the pipeline in February, a Department ethics lawyer wrote in a letter to Greenpeace today. He “has not worked on that matter at the Department Of State and will play no role in the deliberations or the ultimate resolution” of whether to grant Keystone's cross-border permit.
Greenpeace on Wednesday asked the Office of Government Ethics to urge Tillerson to remove himself from any decision tied to Keystone pipeline.
Exxon “is heavily invested in tar sands production that would be served by the pipeline,” Greenpeace said in its statement. “Approval of Keystone XL would increase the value of tar sands oil sold on global markets, and hence the value of ExxonMobil’s tar sands assets. As such, ExxonMobil stands to materially benefit from the approval of the pipeline granted by its former CEO Tillerson.”
Tillerson had said he would separate himself from any State decisions that might affect his old company for one year of his taking office.
Pipeline developer TransCanada filed its application in late January after urging from President Donald Trump. The State Department is supposed to finish its review of the pipeline application in the next few weeks.
Since Tillerson gave himself 90 days after his confirmation to divest himself of Exxon stock, he could conceivably have reaped benefits that a Keystone XL approval would have on company shares, Greenpeace added.
https://www.politicopro.com/energy/whiteboard
-
DOE Economist Talks SPR Exports, Storage and Sales
Mar 10, 2017 | Platts
By Allen Reed
The presenter who arguably received the best questions at Wednesday’s Crude Oil Quality Association meeting in New Orleans was the US Department of Energy’s economist, Kenneth Vincent.
His presentation was part overview, such as the locations of the four salt caverns that hold the more than 700 million barrels of US oil – Texas and Louisiana, and the maximum drawdown capacity – 4.4 million b/d. But there were also some nuggets not found on factsheets such as the how the physical salt caverns are shrinking due to geological pressures and how “distribution issues are a major concern (for the DOE) currently and going forward.”
Following the presentation, the overflowing room of oil industry participants had plenty of questions for Vincent. And if they didn’t know the answers, and I didn’t know the answers, I reckon you might be interested too:
Q: Are there any restrictions on who you can sell to? Could you export oil anywhere?
A: Vincent said since the US oil export ban has been lifted, the office received a legal opinion that it can’t export but it can sell to anyone, who can then export it.
Q: Do you look at the type of oil you are storing so that it is what we need when the time comes?
A: “Yes,” Vincent said, which got some chuckles from the crowd.
After a brief pause he continued to say the strategic petroleum reserve stores about 60% medium sour and 40% sweet crudes that are amalgams from a bunch of different streams.
“Our goal is to have oil as fungible as possible and support as many types as possible.”
He said a common question is if the SPR should focus more on heavy oils, which account for a bulk of imports and are consumed by USGC refineries. However, he said no, that SPR isn’t focusing on adding more heavy oils. He said that heavy oil is “really hard” to store for long periods of time and that there is a lot more sweet oil going into the US refinery fleet.
“We ultimately decided we weren’t going to put a big stake in the ground for changing the type of oil in the reserve but that is something we follow very closely.”
Q: Do you consider the price of specific crude grades when making sales from the SPR?
A: “Yes. Absolutely.”
Vincent said there is a very rigorous process in place in trying to maximize returns for taxpayers.
Q: Does the DOE have any input on pipeline reversals?
A: “Absolutely not,” Vincent said. “We have no say.”
http://blogs.platts.com/2017/03/10/doe-economist-spr-exports-storage-sales/#more-25592
-
A Father of Fracking Seeks to Emulate U.S. Shale Boom in Alaska
Mar 10, 2017 | BNA Daily Environment Report
By Alex Nussbaum
A pioneer of the U.S. shale revolution wants to take fracking to America's final frontier. Success could help revive Alaska's flagging oil fortunes.
Paul Basinski, the geologist who helped discover the Eagle Ford basin in Texas, is part of a fledgling effort on Alaska's North Slope to emulate the shale boom that reinvigorated production in the rest of the U.S. His venture, Project Icewine, has gained rights to 700,000 acres inside the Arctic Circle and says they could hold 3.6 billion barrels of oil, rivaling the legendary Eagle Ford.
While the potential is huge, the difficulty of shipping millions of gallons of water, sand and chemicals—the ingredients used in fracking—to one of the most remote areas on earth is nothing short of monumental. At stake is an Alaskan industry that's seen output tumble from 2.1 million barrels a day in 1988 to 520,000 in 2016 as reserves dwindled and explorers sought cheaper supplies in shale fields to the south.
“The oil is there,” said Basinski, founder and chief executive officer at Houston-based Burgundy Xploration LLC, in an interview. “Now it's a question of how quickly we can get it to flow and whether we can get the economics to work.” One exploratory well has been drilled, he said, and a second is planned by mid year.
The future of U.S. oil exploration has been among the hot topics as the industry's biggest names gathered in Houston this week for the annual CERAWeek by IHS Markit conference. Alaska Sen. Daniel Sullivan spoke during the meeting's opening session and Sen. Lisa Murkowski is set to help close it with comments March 10.
Dwindling Crude
The dwindling volume of crude produced in the state has combined with a rout in oil prices over the last two years to undercut Alaska's once-booming economy. When oil topped $100 a barrel in 2014, Alaska took in $5.7 billion in petroleum taxes and royalties for the fiscal year that ended that June, covering most of its budget. For fiscal 2017, the take is projected at $1.6 billion, a 72 percent drop.
At the same time, the decline has fed worries that the 40-year-old Trans-Alaska Pipeline System, the North Slope's 800-mile link to global oil markets, could become too expensive to operate by the next decade.
In hydraulic fracturing, or fracking, water, sand and chemicals are shot at high pressure into shale rock to release the oil and natural gas trapped inside. Drillers create cracks within shale and tap them with horizontal wells that can run for thousands of feet underground. In Alaska, the practice has been slow to take off due to the higher costs of working in the Arctic, where drilling can cost three times as much as in the lower 48 states.
Until recently, companies also didn't have underground imaging technology good enough to peer beneath the Arctic permafrost and pinpoint shale reserves below.
3-D Imaging
Now that's changing. State tax breaks passed earlier this decade have encouraged explorers to give shale a look, and 3-D seismic imaging technology allows them to make a more educated guess about what's below.
To be sure, shale isn't the only hope for the state's oil industry. Icewine is part of a wave of new exploration on the North Slope.
In October, closely held Caelus Energy LLC said it had found at least 2 billion barrels of recoverable oil about 120 miles to the west of Prudhoe Bay on the Arctic Coast. Armstrong Oil & Gas Co., another closely held company, announced a half-billion barrel discovery the next month. ConocoPhillips, the state's biggest oil producer, said in January that it was developing a new field that may hold as much as 300,000 barrels.
Caelus has turned to fracking to boost production in non-shale wells on the slope as well.
“This is the oiliest place we've ever worked,” Caelus CEO Jim Musselman said in an interview. “These are not world-class rocks so we've had to turn to more modern techniques. The low-hanging fruit has been plucked so we're having to go a little higher in the tree.“
Burgundy Xploration, Basinski's closely held company, has teamed with Australia-based 88 Energy Ltd. to test shale on 690,000 acres of state land south of Prudhoe Bay. The land sits over three underground bands of shale, from 3,000 to 20,000 feet below ground, that are the source rocks for the huge conventional oilfields to the north.
The companies’ first well, Icewine 1, confirmed the presence of petroleum in the shale and found a geology that should be conducive to fracking, Basinski said. Their second well, due to be drilled in the first half of 2017, will fracture a small section of that range and see how readily the oil flows.
Unanswered Question
“We don't know what we have yet,” said Michael McFarlane, Burgundy's president. “We know that the shale has sourced a tremendous amount of oil, but is it commercial? That's a question that we haven't answered yet.“
Basinski was a geologist at Houston-based Burlington Resources Inc. in the early 2000s, when he began pushing to test the Eagle Ford shale zone in southern Texas. The rocks were long thought to contain oil, but conventional wisdom held the geology wasn't suitable for fracking, Basinski, 62, recalled in an interview.
Basinski looked at the data and thought differently. When Conoco bought Burlington in 2006 for $36 billion, it inherited the geologist's quixotic quest as well.
“I just looked at a map and saw a lot of white space in Texas and asked a stupid question: what is this?” he said. “I was looking for the opposite of what everybody else was looking for.“
Prolific Play
Conoco would eventually snap up thousands of acres in the area at rock-bottom prices, before the Eagle Ford's productivity was fully known. By 2015, the Eagle Ford was the most prolific shale play in the U.S., producing 565 million barrels, according to the Energy Department. North Dakota's Bakken shale was second with 421 million barrels.
Basinski left Conoco in 2011 to pursue unconventional plays elsewhere in the globe. Alaska seemed a natural target—huge reservoirs like Prudhoe Bay had to have source rocks somewhere nearby, he figured.
“There's a lot of potential,” said David Houseknecht, a senior research geologist at the U.S. Geological Survey who studies Alaskan oil. “The big ’but’ is that you can only put so many wells within a stone's throw of the pipeline. Even if you assume the kind of production rate that the Bakken or Eagle Ford have given you, it's going to be a challenge to make it economically viable.“
In a 2012 assessment, the USGS said North Slope shale may hold anywhere from zero to 2 billion barrels of oil recoverable with current technologies. The report emphasized “the large range of uncertainty” associated with the area.
An analysis of well results by consultant DeGolyer & MacNaughton found the Icewine land may sit atop the equivalent of 1.4 billion barrels of oil, 88 Energy said in an investor presentation last month. The company said its own modeling suggests as much as 3.6 billion barrels may be available. The Eagle Ford that Basinski helped develop, by comparison, has about 4.3 billion barrels, according to Energy Department estimates.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851317&vname=dennotallissues&fn=106851317&jd=106851317
-
Fractious Fractions Teased from Crude Oil
Mar 9, 2017 | Chemical & Engineering News
By Mark Peplow
Crude oil is an unruly soup of tens of thousands of organic compounds, and this diversity makes it difficult to pick out individual molecules from the crowd for analysis using standard tools such as mass spectrometers. Despite the vast quantities of crude oil used globally each day, much remains unknown about its chemical composition, which can vary dramatically from one oil field to the next.
A method that separates crude oil into a dozen fractions based on their chemical properties now promises more details about composition: It could help chemists measure low levels of molecules that corrode pipelines or pinpoint the most toxic compounds in an oil spill (Anal. Chem. 2017, DOI: 10.1021/acs.analchem.6b04202).
Fractionation is not a new approach to simplifying oil analysis. One of the most common methods, dubbed SARA, uses chromatography to split oil into four broad classes: saturates, aromatics, resins, and asphaltenes. But this separation is based largely on the molecules’ solubilities in the solvent being used, and many chemical classes remain obscured within the mélange in each fraction.
In contrast, the new method developed by Steven J. Rowland of the University of Plymouth and coworkers is particularly good at teasing apart a mixture of polar compounds containing nitrogen, sulfur, or oxygen—often responsible for poisoning oil-processing catalysts—which conventional analytical methods struggle to identify.
The procedure is not based on radical innovation. It relies on a series of columns filled with commercial ion exchange resins and silica, making the method reproducible, relatively simple, and inexpensive. “The real novelty is putting it all together,” says Ryan P. Rodgers, director of the Future Fuels Institute at Florida State University, who was not involved with the work. By deploying the separation columns in the right order and eluting the crude oil with a series of increasingly polar solvents, the method isolates molecules depending on how well their functional groups stick to each type of column. This process yields fractions that are each dominated by a particular chemical class: sulfoxides, quinolines, carbazoles, fluorenones, and more.
After analyzing each fraction with techniques such as gas chromatography/mass spectrometry, the team identified dozens of specific compounds. Some of them, such as thioxanthones, were previously unknown in crude oil. The method achieves “a better separation between different classes of chemicals,” says Sonnich Meier of the Institute of Marine Research. “It’s the best I’ve seen.”
Meier has been working with Rowland’s team for the past three years and plans to use the technique to single out the compounds in crude oil that are toxic to fish embryos, which can be contaminated during an oil spill.
Meanwhile, the oil industry increasingly wants to know the precise composition of a crude oil before investing in extracting it. Declining production of low-sulfur, sweet crude, oil has the industry relying on heavier crudes requiring more refining and posing greater risks of pipeline corrosion or blockages.
http://cen.acs.org/articles/95/i11/Fractious-fractions-teased-crude-oil.html
-
Tax Reform Group Urges Ryan to Back RMP Repeal
Mar 10, 2017 | Inside EPA
Grover Norquist, the influential leader of Americans for Tax Reform (ATR), is urging House Speaker Paul Ryan (R-WI) to quickly advance a pending Congressional Review Act (CRA) disapproval resolution to repeal the Obama EPA's overhaul of its industrial facility accident prevention program.
Norquist's call, in a March 9 letter, backs chemical industry arguments that the rule is unnecessary, increases costs and jeopardizes security and also bolsters the industry's efforts to advance the resolution, which has not been a priority for GOP leaders.
In the letter, Norquist -- who is influential in GOP circles -- calls on Ryan to back CRA resolutions pending in the House and Senate to repeal EPA's Jan. 13 final rule updating its Risk Management Plan (RMP) facility safety program with new hazard analysis and auditing requirements.
“While increased safety is a laudable goal, the changes to the RMP put forth by the EPA under President Obama fall short of achieving this goal in a sensible and cost effective manner,” Norquist says. “Instead, the changes put forth to the RMP could actually jeopardize the safety of U.S. chemical facilities and grow an already costly compliance burden.”
Noting the RMP rule is scheduled to take effect March 21, Norquist presses Ryan to act quickly. “I urge you and your colleagues in Congress to support both H.J. Res. 59 and S.J. Res. 28 and use the authority granted under the [CRA] to prevent the enactment of the new RMP rule,” he says.
EPA's Jan. 13 final rule overhauls its RMP facility accident prevention program with new requirements for auditing, hazard analysis and disclosure of facility data. EPA issued the rule under former President Barack Obama's August 2013 executive order (EO) on improving the safety and security of industrial plants.
Obama issued the order in response to an explosion at a fertilizer plant in West, TX, that killed 15 people, including first responders. While the explosion and subsequent EO triggered EPA's overhaul of its RMP accident prevention program, authorized under the Clean Air Act, investigators later blamed arson for the fire that led to the explosion.
Industry officials have criticized the RMP rule as imposing unnecessary new requirements without clear benefit. They have especially faulted as costly and unnecessary new requirements that certain facilities analyze whether safer technologies would improve safety, conduct independent audits, and release data to first responders and the public.
Industry is supporting CRA resolutions that Rep. Markwayne Mullin (R-OK) and Sen. James Inhofe (R-OK) introduced in February and March, though the congressional push to repeal RMP appears to face an uphill battle given competing priorities and a narrow time frame for passing CRA resolutions after a rule's publication.
Mullin's resolution is not on the House GOP leadership's list of priority CRA resolutions. Inhofe's measure
has eight co-sponsors, including Majority Whip John Cornyn (R-TX), environment committee Chairman John Barrasso (R-WY), homeland security committee Chairman Ron Johnson (R-WI) and Sen. Jerry Moran (R-KS), a member of the environment committee that has jurisdiction over the measure.
The CRA enacted during the Clinton administration allows Congress, with the president's signature, to undo rules issued within 60 legislative days. The bills pending in the House and Senate are H.J. Res. 59 and S. J. Res 28.
Industry officials are pursuing multiple avenues for overturning the RMP rule. Late last month, a coalition of petrochemical, power and other industry groups petitioned EPA Administrator Scott Pruitt to “reconsider and rescind” the RMP update even as the groups prepare to file litigation that they hope will lead to the rule's elimination.
In the recent letter, Norquist backs industry arguments that EPA's prior RMP rule has successfully reduced risks of accidental releases, and that the EPA's new rule increases compliance burdens while making facilities less safe. Specifically, Norquist faults disclosure provisions requiring facilities to release certain data on their chemical holdings.
“Such disclosures would be available to any member of the public upon request, and the new rule would prevent facilities from denying access or using any sort of vetting process to ensure the release of sensitive information will not be used to endanger the public or compromise national security,” the letter says.
https://insideepa.com/daily-feed/tax-reform-group-urges-ryan-back-rmp-repeal
-
Experts to Trump: Don't Trip on 'Turf Battles'
Mar 10, 2017 | E&E Daily
By Blake Sobczak
President Trump should avoid shuffling government programs for sharing cybersecurity intelligence with the private sector, experts told House lawmakers yesterday.
In past statements, Trump has hinted at a bigger role for the Department of Defense in securing federal agencies and privately run critical infrastructure from hackers.
"That would be a mistake," said Robyn Greene, policy counsel and government affairs lead at the New America Foundation's Open Technology Institute. "We should start moving forward instead of moving back and relitigating past debates" on which parts of government should take the reins on cybersecurity, she added.
The Cybersecurity Information Sharing Act, signed into law in late 2015, established the Department of Homeland Security as the main conduit of private companies hoping to alert the U.S. government to hacking incidents or vulnerabilities. The law also grants liability protection to companies that disclose technical information on cyberthreats.
"Having civilian control over cybersecurity was one of the main points of contention in the debate over CISA," Greene said yesterday at a hearing of the House Homeland Security Subcommittee on Cybersecurity and Infrastructure Protection. She added the debate "has been settled," with DHS the winner.
Subcommittee Chairman Rep. John Ratcliffe (R-Texas) pointed out in an opening statement that "the start of a new administration provides a clean slate — a perfect opportunity to regroup and reassess before moving forward."
He went on to ask witnesses at the hearing what advice they would bring to Trump's cybersecurity advisers.
Their answer: ditch talk of a cyber U-turn toward DOD in favor of shoring up Homeland Security.
A leaked draft of a pending executive order on cybersecurity would see Trump largely stay the course on U.S. cyber policy. But the administration has not officially walked back Trump's pledge last year to "ask the Department of Defense and the chairman of the Joint Chiefs of Staff to develop a comprehensive plan to protect America's vital infrastructure from cyberattacks" (Energywire, Nov. 28, 2016).
"I'd like to see a clear statement from the administration that there will be a civilian lead for the cybersecurity effort," said Jeffrey Greene, senior director for global government affairs and policy at security software giant Symantec Corp. "I think it's important to send a message to the companies that have developed relationships with DHS, to know those are going to continue."
Ryan Gillis, vice president of cybersecurity strategy and global policy at cybersecurity firm Palo Alto Networks, urged Trump to avoid "refighting the turf battles" over who would take charge of online security.
"We've had a 10-year discussion in this country about roles and missions of DHS, of DOD, of the intelligence community, of law enforcement — how all of those entities can work together with the private sector and internally," he said. "Not relitigating that and moving forward with being more effective in the operational environment ... would be essential."
"Moving forward" could include freeing more resources and for collaborative efforts like DHS's flagship Cyber Information Sharing and Collaboration Program, or speeding up the process for declassifying useful data on hackers, speakers suggested.
Such measures could be paired with legislation to centralize and rename DHS's cybersecurity branch, now known as the nondescript National Protection and Programs Directorate. Homeland Security Chairman Michael McCaul (R-Texas) has said he plans to make streamlining DHS's cybersecurity mission a priority in the new Congress. He has pushed back against transferring DHS cyber responsibilities to DOD (Energywire, Jan. 6).
At yesterday's hearing, ranking member Cedric Richmond (D-La.) also spoke out against military oversight of civilian cyberspace, suggesting Trump would face bipartisan pushback if he attempted to follow through on some of last year's past cyber policy proposals.
"While I share the president's desire to better protect critical infrastructure, directing the Pentagon to take on cybersecurity in the private sector would represent a radical departure from how the government manages cybersecurity," Richmond said.
This story also appears in Energywire.
http://www.eenews.net/eedaily/2017/03/10/stories/1060051259
-
Bill Exempts Oil, Natural Gas Industry from WV Chemical Tank Safety Law
Mar 9, 2017 | Charleston Gazette-Mail
By Ken Ward Jr.
More than two-thirds of the chemical storage tanks covered by a safety law passed after the Freedom Industries spill into the Elk River would be exempt from that law, under a bill now moving through the West Virginia House of Delegates.
The legislation would exclude 29,000 tanks owned and operated by the oil and gas industry from West Virginia’s Aboveground Storage Tank Act, according to a preliminary analysis by the state Department of Environmental Protection. That’s 69 percent of the 42,000 tanks that must be registered with the DEP under the law, passed by the Legislature in the wake of the January 2014 spill that contaminated drinking water for hundreds of thousands of people across the Kanawha Valley and surrounding communities.
House Bill 2811 was introduced just two days ago and was approved Thursday afternoon by the House Committee on Energy, with little debate and by a unanimous voice vote.
It now goes to the House Judiciary Committee.
Judiciary Chairman John Shott, R-Mercer, is a co-sponsor of the bill, as is House Democratic leader Tim Miley, D-Harrison.
Supporters say the bill aims to exempt from the law only certain types of smaller tanks that are not located near drinking water intakes.
Gov. Jim Justice has expressed support for giving the natural gas industry relief from the chemical tank law.
The West Virginia Environmental Council called the legislation “a new attack” on the chemical tank safety bill that would “undercut the protections” of that law, which already was significantly scaled back and has been the subject of repeated efforts by oil and gas operators, and by some other industries, looking for what are practically wholesale exemptions.
Under the bill, a new exemption would apply to tanks with a capacity of 210 barrels, or about 8,820 gallons, that contain “brine or water or other fluids produced in connection with hydrocarbon production activities,” if those tanks are not located in a “zone of critical concern,” an area that is estimated to be about five hours upstream from a drinking water intake.
Larger natural gas industry tanks and those located within zones of critical concern near drinking water intakes still would be covered by the law.
“It certainly does not reduce the level of regulation on tanks inside the zone of critical concern,” said Charlie Burd, executive director of the Independent Oil and Gas Association.
The bill’s lead sponsor, Judiciary Vice Chairman Roger Hanshaw, said a goal of the legislation is to remove from the DEP the burden of regulating gas industry tanks that are not located where they present a threat to drinking water supplies.
“We have an agency that is underfunded, that can’t do all the things it needs to do. This would let them spend their time on things that pose problems instead of ... things that aren’t a problem,” said Hanshaw, a Clay County Republican who holds a doctorate in chemistry and, as an attorney with the Charleston firm Bowles Rice, sometimes represents the West Virginia Independent Oil and Gas Association and the West Virginia Oil and Natural Gas Association.
The vast majority of the tanks that would be exempted under the bill, though, do not actually fall within a section of the current storage tank law that contains any specific safety requirements or mandated inspections, according to the DEP.
After the Freedom spill, lawmakers passed a landmark and very strong chemical storage tank law. The law was much broader in scope than then-Gov. Earl Ray Tomblin had proposed and was approved unanimously, despite numerous efforts by various industry lobbyists and some lawmakers to weaken its provisions. A year later, lawmakers scaled back the number and types of tanks covered by the law, but refused a natural gas industry effort to get a wholesale exemption.
Existing law spells out several types of chemical storage tanks that are covered in different ways.
A broader collection of containers is defined as “aboveground storage tanks,” if they meet certain criteria, including having a capacity of more than 1,320 gallons. All of those tank owners are required to file a registration form with the DEP and pay a registration fee of $40, for tanks that filed before July 1, 2015, and $20 for tanks that filed after that date. Operators of those tanks also must place signs or markers that list their registration number and an emergency contact number.
The law outlines two other categories of tanks. “Regulated Level 1 Tanks” are located within a zone of critical concern that contain certain particularly hazardous materials or have a capacity of 50,000 gallons or more. “Regulated Level 2 Tanks” are located within an area called the “zone of peripheral concern,” which is 10 hours upstream from any drinking water intake.
Both categories of “regulated” tanks are subject to DEP safety standards and requirements for certain types of inspections, with Level 1 tanks being subject to more scrutiny than Level 2 tanks because of their closer proximity to drinking water intakes.
Joe Sizemore, an assistant chief inspector for the DEP’s Division of Water and Waste Management, noted for the committee that HB 2811 does not apply to any tanks that are located within a drinking water zone of critical concern.
As of early January, the DEP’s inventory of registered aboveground storage tanks contained about 42,000 tanks in all categories combined, Sizemore said.
The legislation being considered would exempt 29,000 of those tanks from the definition of “aboveground storage tanks” covered by any part of the law. Sizemore said. Of those 29,000 tanks, about 2,300 tanks that would be exempted from the bill are within the zone of peripheral concern, making them Level 2 tanks, according to Sizemore’s testimony to lawmakers Thursday afternoon.
That means that about 26,700 of the tanks that would be exempted by the bill are not “regulated” tanks and face only a requirement that they be registered with the state and carry a marker listing their registration number and an emergency contact, according to Sizemore.
Dave McMahon, a lobbyist for the West Virginia Surface Owners Rights Organization, said the registration of all aboveground storage tanks is important for residents in the state’s natural gas producing regions.
“Our concern is, if you live out in the country, you ought to be able to look at a map and see what tanks are out there and go look at them,” McMahon said. “This will stop that from happening.”
Before passing the bill on to the Judiciary Committee, members of the Energy Committee also approved an amendment that would exempt tanks with a capacity of 10,000 gallons or less that contain sodium chloride or calcium chloride “for roadway snow and ice pretreatment” if those tanks are not located in zones of critical concern.
Rita Pauley, a lawyer for the West Virginia Division of Highways, said her agency requested the amendment. Pauley said the DOH has 146 such tanks but that six would not be exempt because they are located within zones of critical concern. Pauley said the DOH does get some of the brine material it uses on roadways from the oil and gas industry.
- See more at: http://www.wvgazettemail.com/news/20170309/bill-exempts-oil-natural-gas-industry-from-wv-chemical-tank-safety-law#sthash.XC8O60zm.dpuf
http://www.wvgazettemail.com/news/20170309/bill-exempts-oil-natural-gas-industry-from-wv-chemical-tank-safety-law
-
(ACC Mentioned) If Congress Secides to Spend $1 Trillion on Infrastructure, Keep Tabs on Who Gets It
Mar 9, 2017 | Scholars and Rogues
The 2017 report card of the American Society of Civil Engineers, posted today, gives the infrastructure on which America depends for commerce, defense, recreation, flight, food, water, waste — almost everything — an overall grade of D+.
From the ASCE report:
The 2017 grades range from a B for Rail to a D- for Transit, illustrating the clear impact of investment – or lack thereof – on the grades. Three categories – Parks, Solid Waste, and Transit – received a decline in grade this year, while seven – Hazardous Waste, Inland Waterways, Levees, Ports, Rail, Schools, and Wastewater – saw slight improvements. Six categories’ grades remain unchanged from 2013 – Aviation, Bridges, Dams, Drinking Water, Energy, and Roads.
The areas of infrastructure that improved benefited from vocal leadership, thoughtful policymaking, and investments that garnered results.
Scholars & Rogues has long considered addressing the nation’s infrastructure needs essential for the nation’s economic, cultural, resource, and domestic security (see here, here, here, and here). But it’s a topic that until recently has not received the attention its badly needed remediation demands. The ASCE report demands close inspection by citizens and politicians alike — followed by “thoughtful policymaking.”
President Donald wants to spend at least one trillion dollars on infrastructure repairs. First and foremost, that’s not enough: The 2017 ASCE report recommends two trillion dollars over 10 years to fix most of what’s flawed. Then, of course, there’s the need to budget for continuing maintenance of a regenerated infrastructure.
Questions abound beyond defining the desperate need for action most Americans now recognize.
Who decides on what?
Aside from the nagging issue of how to find $1 trillion to spend, who will decide what specific parts of the infrastructure to fix using what decision process?
Gosh — I’ll bet lobbyists will somehow be involved. Politico’s Influence newsletter carried this tidbit earlier this week:
As Trump lays the groundwork for shepherding a $1 trillion infrastructure package through Congress, companies and industries are strategizing on how to get their priorities included in the legislation. The latest move comes from the American Chemistry Council, which commissioned a report from PricewaterhouseCoopers on how an infrastructure spending boost could fuel a chemical manufacturing “renaissance.” The report identifies shortcomings in the truck, marine and rail infrastructure the industry relies on. The council’s member companies include giants like Dow, DuPont, Honeywell, 3M, Merck and Monsanto. Cal Dooley of the American Chemistry Council, Mike Joyce of the American Trucking Associations and Mark Lustig of PriceWaterhouseCoopers were on the Hill on Wednesday with Reps. Garret Graves (R-La.) and Bruce Westerman (R-Ark.) to roll out the report. [boldface emphasis in original; italics added).
Yep — name an aspect of the nation’s infrastructure and there will be lobbyists looking for a share of the spending pie for their clients. Lobbyists, if not tracked closely, will heavily influence what’s done, where, and for how much.
Should private entities get public money?
Consider the purchase of public highways — especially toll roads — by private companies — even foreign companies. The Indiana Toll Road was in bankruptcy “eight years after inking a $3.8 billion, 75-year concession for the road with the administration of Governor Mitch Daniels.” As that toll road degrades, who is responsible for maintaining it? The Australian company that leased it? The state that gave it up? Or the feds through congressionally authorized infrastructure funding?
Many sectors of the American infrastructure are the product of public-private partnerships, perhaps with local and state tax breaks thrown in. If Congress deems those sectors essential for the nation’s security, how is financial responsibility apportioned?
How transparent will contract accounting be?
Repairing and renewing the nation’s infrastructure — with its enormous price tag — requires rigorous oversight on how that money is spent. The taxpayers should get their money’s worth without paying for fraud, corruption, or incompetence.
Such big projects — fixing a large dam, for example — require the expertise of large companies. Keep an eye on the nation’s top contractors if they’re selected to work with public money on infrastructure projects.
Here are a few lists (here and here) of America’s largest construction companies. You’ll recognize many of them. Money will eventually flow to them (and their subcontractors). If they’re hired, who will be the inspectors general charged with insuring good work for a fair price? (And who will appoint those IGs using what process?)
What are the chances of fraud?
In the case of infrastructure, money flows downstream. Congress first authorizes, generally every five years, a list of long-term projects. Then each sitting of Congress may (or may not) appropriate money for some or all of the authorized projects. For roads and bridges, for example, the federal Department of Transportation sends the appropriated money to state DoTs. Then, generally, the state DoTs tell their regional DoT sections to seek bids and award contracts.
That’s the honeypot. Opportunities for large (and not-so-large) contracting firms to make money on the public’s dime exist through various forms of fraud — bid suppression, complementary bidding, bid rotation, or customer or market allocation.
Fraud is now news where I live in western New York state. Gov. Cuomo (who’d like to be president some day) drove allocation of a $1 billion fund to help revive the economy of Buffalo and environs. But U.S. Attorney Preet Bharara alleges a large contractor received a $750 million contract in return for bribes, disguised as consultant fees, to a lobbyist in a position to influence the contract award process.
That’s a billion dollars of opportunity and temptation for fraud. Consider the opportunity and temptation inherent in infrastructure spending of $1 trillion to $2 trillion.
Think monopolies. Think collusion. A large-scale effort to address long-term infrastructure issues in the short term just begs for significant anti-competitive behavior.
If Congress allocates $1 trillion in one fell swoop, will there be sufficient construction and engineering firms for truly competitive bids? If all 56,000 bridges deemed structurally deficient by ASCE need repairing over a short term, will bridge repair firms collude? Will they divvy up the work among them or deliberately lose some bids to win others?
If Congress says “Go!” in the next four years, will President Donald and his Cabinet and beachhead cronies be part of this? Are taxpayers going to see the most epic fleecing of the State of all time?
Oh, well. Such conjectures assume Congress even decides to buy into Donald’s $ 1 trillion plan.
Meanwhile, as you drive to work over a pothole-filled toll road, ask yourself a few questions:
How old are the pipes bringing water (and fire protection) into my home or business? How old are the sewer pipes? The electrical lines connecting my home or business to the grid?
How old is the bridge I drive over each day? Or worse, the one a school bus carrying my child drives over?
How clean is the water coming into my house? (Think Flint, Michigan.) How safe are the rails my Amtrak commuter train rides?
You’ll come up with a long list of infrastructure issues that affect you directly and personally.
So what do you do?
Step 1: Tell Congress to authorize projects and appropriate money for them.
Step 2: Follow the money.
I don’t want to live in a nation of D+. Do you?
https://scholarsandrogues.com/2017/03/09/if-congress-decides-to-spend-1-trillion-on-infrastructure-keep-tabs-on-who-gets-it/
-
(ACC Mentioned) House Panel Advances Science Transparency, EPA Science Board Bills
Mar 10, 2017 | BNA Daily Environment Report
By Rachel Leven
The EPA would have to publicly release more data, limit use of certain science, and alter the makeup of a board that gives the agency scientific advice under two bills a House committee advanced on March 9.
The House Science, Space and Technology Committee approved by a 17-12 margin the Honest and Open New EPA Science Treatment Act of 2017 (H.R. 1430), a bill focused on what science the agency must make public or limit use of in its decision-making.
The committee also approved the Environmental Protection Agency Science Advisory Board Reform Act of 2017 (H.R. 1431), which aims to make the agency's Science Advisory Board a transparent and “well-balanced expert panel,” by a 19-14 vote.
House Republicans said at the mark-up that these bills are needed to restore transparency in the Environmental Protection Agency's use of science in its decisions, judgments that Republicans say have had real economic consequences.
However, House Democrats argued that the bills wouldn't improve science in EPA decisions, but would slow the regulatory process unnecessarily and dangerously exclude important science and scientists with expertise on the issues.
Path Forward
Both bills are similar to two House bills that passed the lower chamber and died in the Senate last session.
A spokesman for House Majority Leader Kevin McCarthy (R-Calif.) told Bloomberg BNA in an email that the leader's office is aware of the bills, but a vote has yet to be scheduled.
Sen. John Barrasso (R-Wyo.), the new Senate Environment and Public Works Committee chairman, also seems open to working on these issues.
“The House Science Committee is continuing to work to improve science at the EPA. EPA's science should be open and transparent and the Senate Environment and Public Works Committee will continue to work to achieve these goals,” a spokesman for the Senate committee's majority told Bloomberg BNA in an email.
Both House bills are supported by groups such as the American Chemistry Council. the U.S. Chamber of Commerce and the American Farm Bureau Federation. They are opposed by groups that include the American Lung Association, the Environmental Defense Action Fund and American Geophysical Union.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851345&vname=dennotallissues&fn=106851345&jd=106851345
-
(ACC Mentioned) Lawmaker Presses Ahead with Science in Rulemaking Bill
Mar 10, 2017 | E&E Daily
By Arianna Skibell
Senate Homeland Security and Governmental Affairs Committee member James Lankford (R-Okla.) is seeking advice from former government officials and scientists in an effort to codify best practices for science in rulemaking.
"The American people should be confident that when agencies regulate, they are relying on up-to-date, accurate and unbiased information," Lankford, chairman of the Regulatory Affairs and Federal Management Subcommittee, said at a hearing yesterday.
"To put it simply, agencies should rely on the best available information and make decisions based on the weight of that information."
Lankford, along with Sen. Heidi Heitkamp (D-N.D.), the subcommittee ranking member, discussed how agencies can separate science from policy, whether data should be made publicly available and if practices should be codified at all.
Lankford said the panel is hoping to finalize a bill that would apply across agencies and codify the process for using the "best available science" when promulgating rules.
"This is not a new idea. Presidents from both parties have stressed the importance of relying on sound science to inform regulatory decisions," Lankford said.
"Yet, despite these clear directives, agencies continue to use questionable science to support their regulatory decisions."
The panel and witnesses discussed and condemned what they see as the frequent politicization of science in rulemaking and urged a separation between facts and policy decisions.
"The problem is that frequently people have different sets of facts," Heitkamp said.
"Frequently in Washington, D.C., it's politicized. We just have to put that out there, science [here] is in the eyes of the beholder."
Heitkamp recalled a recent post on Twitter in which a basketball player said he truly believed the world was flat. Someone online responded that the athlete's opinion should be respected, she said.
"I thought, maybe not. I thought Galileo dealt with this," she said. "We can't be swimming outside the lanes so far that we have a reasonable dialogue about the Earth being flat."
Heitkamp cited climate change as a prime example of an inability to separate facts from judgments about those facts and of how science can be politicized.
"It's becomes a political issue as opposed to a scientific one," she said.
Susan Dudley, who ran the Office of Information and Regulatory Affairs during the George W. Bush administration, assured the panel that the world is not flat. She said it's essential to differentiate what is pure science, what is pure policy and what is a gray area.
She said science can become a political issue that interferes with regulatory policy when scientists, intentionally or not, insert their own policy preferences in scientific advice they provide government officials. She said these hidden policy judgments can lead to "advocacy science."
Science can also become a political issue when the line between scientific information and judgments about that information is blurred, which Dudley referred to as a tendency to "camouflage" controversial policy decisions as science.
"Clarifying which aspects of the decision are matters of science and which are matters of policy is essential to avoid both hidden policy judgements and the science charade," she said in her testimony.
"When people condemn the politicization of science, the problem may really be that we ask too much of science in addressing policy problems."
Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said establishing scientific integrity policies at departments and agencies can help minimize political interference.
He said there should be a clear line between the evidence and someone's interpretation of what the evidence means.
"To me, it comes down to transparency," said Nancy Beck, senior director of regulatory science policy at the American Chemistry Council. "I don't want you to trust me because I'm a scientist, but because you've looked at my analysis and it's rigorous."
She added: "The solution is in clarity and transparency."
Rosenberg, however, cautioned about the perils of sharing raw data. He said it's important to distinguish between models or analysis and data, which can be confidential or proprietary.
"Access to critical scientific information must be granted only while maintaining necessary confidentiality and respecting privacy concerns," he said.
The panel also discussed effective peer-review methods, the extent to which cost-benefit analysis should come into play, and using the Frank R. Lautenberg Chemical Safety for the 21st Century Act as a model.
The new chemicals law, enacted in 2016, directs U.S. EPA to consider not only the best available science but also the weight of the scientific evidence.
Rosenberg cautioned that codifying "best available science" opens the way for judicial review, which could lead to endless lawsuits over the data used in issuing a rule.
Once lawsuits are on the table, he said agencies would be careful to use respected scientific methods and less likely to incorporate new and innovative mechanisms.
The bill updating the Toxic Substances Control Act also removed language that required EPA to find the least burdensome rule alternative.
Sen. Tom Carper (D-Del.) pressed Beck on the removal of this provision, asking her to confirm that it was part of the reason the law was ineffective and unusable.
"That language was very problematic," she said. "The language doesn't exist anymore."
Senate Republicans are currently trying to pass a measure that would require all federal agencies to find the least burdensome alternative when considering rules (Greenwire, Feb. 21).
http://www.eenews.net/eedaily/stories/1060051251/search?keyword=%22american+chemistry+council%22
-
(ACC Mentioned) Senators Eye Legislation Requiring Agencies To Use 'Best Available Science'
Mar 9, 2017 | Inside EPA
By Maria Hegstad
The Senate Homeland Security and Government Affairs Committee is weighing how to codify requirements in executive orders that EPA and other federal agencies utilize only the “best available science” in their regulatory decisionmaking, but is likely to take a different approach than EPA-specific science legislation in the House.
“Agencies should rely on the best available information and make decisions based on the weight of that information,” said Sen. James Lankford (R-OK), chairman of the committee's Regulatory Affairs and Federal Management Subcommittee in his opening remarks at a March 9 hearing.
“If past administrations' attempts to encourage agencies to base their regulatory decisions on transparent sound science have failed, Congress should consider establishing new legal requirements,” Lankford added. “I look forward to discussing steps Congress can take to implement these basic and fundamental requirements that have been endorsed by both Democrat and Republican administrations for decades.”
Lankford pointed to examples such as President Bill Clinton's 1993 Executive Order (EO) 12866, directing agencies to “base decisions on the best reasonably obtainable” information and President Barack Obama's EO 13563, directing all agencies to “ensure the objectivity of any scientific and technical information” supporting regulatory decisionmaking.
Lankford raised concerns that despite these directions, agencies have not always met such standards. He pointed to recent EPA regulatory activities, which he suggested did not meet such standards, EPA's 2015 proposal to ban the insecticide chlorpyrifos and “Clean Air Act regulations.”
“Examples like these call into question whether agencies are actually using the best available information available to them when they make regulatory decisions,” Lankford said. “Each administration has their own priorities, but the principles supporting regulatory decisions should remain constant regardless of who occupies the White House.”
In remarks with reporters afterward, Lankford said, “We're not just trying to target EPA,” adding that he is seeking language that would apply broadly to all agencies, unlike other congressional efforts.
Lankford's comments came as the House science committee March 9 approved along party lines two bills that would require EPA to publish all of the data it uses and to restructure its Science Advisory Board.
Lankford, however, reiterated at the hearing the bipartisan support for agencies' use of best available science. “There's been executive orders for many years on best available science,” he said, adding that if there's so much agreement, “Let's move it to statutory language.”
Scientists' Concerns
But one witness at the hearing raised concerns about the idea. Andrew Rosenberg, director of the Union of Concerned Scientists' Center for Science and Democracy, argued in his written testimony that “if one were to legislate what should be legally considered 'best available science,' it would prevent the innovation and flexibility that is inherent in the scientific process. This ability to learn is essential for agencies as they address new discoveries like autonomous vehicles and advancements in nanotechnology.”
Rosenberg added that “science continues to evolve. New research leads to a better understanding of complex challenges that we face today, allowing experts to make appropriate determinations, sometimes erring on the side of caution when faced with uncertainty or limited data to best protect the public.”
Sen. Maggie Hassan (D-NH), asked Rosenberg to elaborate on these concerns at the hearing. Rosenberg replied, “If you legislate best available science, that is exactly what agencies will do and not deviate, even if there is a better approach, even if there is new science . . .”
But the other two witnesses at the hearing encouraged Lankford's efforts. Nancy Beck, senior director of regulatory science policy at the chemical industry association American Chemistry Council, told Lankford that there is a definition of weight of evidence that she would like to see EPA adopt, a definition the Senate discussed last June during debate on the Lautenberg Chemical Safety for the 21st Century Act (LCSA), which revised the Toxic Substances Control Act.
In her written testimony, Beck provided four recommendations to improve regulatory science, by clarifying scientific definitions, improving oversight and developing “quality checklists,” improving peer review practices and changing “publication incentives and standards for scientific grants funding.”
As an example, Beck points to the Lautenberg Act, which includes some language requiring EPA's use of best available science in conducting its risk evaluations of chemicals. “ACC believes that the intent of Congress in drafting the scientific standards in the LCSA is clear. It is also clear that EPA’s proposed interpretation diverges from Congressional intent in important respects,” Beck's testimony states.
Beck continues, “Clarifying that the intent of scientific standards is to improve existing Agency practices would be useful. In addition, providing clear and specific definitions for terms like best available science and [weight of evidence] would be beneficial to the consistency, reliability and credibility of EPA’s regulatory decisions. These definitions should address not only what Agencies should consider when evaluating scientific information, but also what information Agencies should present in evaluations.”
Susan Dudley, director of the George Washington University Regulatory Studies Center, also backed the committee's efforts, noting her her written testimony that “[e]ffective regulatory policy that focuses resources on addressing real threats to public health and the environment depends on reliable scientific information and transparent policy choices.”
Dudley added that “clarifying which aspects of the decision are matters of science and which are matters of policy is essential to avoid both hidden policy judgments and the science charade.”
But Sen. Tom Carper (D-DE), seemed to question the necessity of such a bill in his questions to the witnesses. He noted that regardless of any change in law on scientific standards, the Administrative Procedure Act requires agencies to conduct cost-benefit analyses as part of the rulemaking process, among other restraints, and that regulated entities can sue if EPA fails to meet these requirements.
House Bills
Meanwhile, the House Science, Space and Technology Committee voted two bills, H.R. 1430 and H.R. 1431, to the House floor on party-line votes. H.R. 1430 is a reprise of Chairman Lamar Smith's (R-TX) “secret science” bill of previous sessions. The intent of the bill is to require EPA to use the "best available" reproducible science in developing rules and to make all data underlying its rules publicly available. Such a mandate would be challenging with some of the data that EPA relies on, such as epidemiological data and medical records, confidential business information, or even data with certain copyright protections.
Lankford, in the Senate hearing, mentioned several of these concerns and sought witnesses' advice on what he suggested was the challenge of addressing them. “We are seeking a way to . . . solve this legislatively. We do not want to overreact in what is done and . . . squash the future of science, or to be able to compel people not to do research or put information that should not be in the public domain there,” he said.
Smith, in the House science committee's March 9 markup, touted changes to the bill that he said address concerns about the release of private and confidential information. “I really think we've addressed the concerns,” he said.
H.R. 1430 now states that if passed, the EPA must only rely on information that is publicly available online “except that any personally identifiable information, trade secrets, or commercial or financial information obtained from a person and privileged or confidential, shall be redacted prior to public availability.”
The new bill further states that such “redacted information . . . shall be disclosed to a person only after such person signs a written confidentiality agreement with the Administrator, subject to guidance to be developed by the Administrator.”
https://insideepa.com/daily-news/senators-eye-legislation-requiring-agencies-use-best-available-science
-
EPA Will Consider All Options as It Looks at Budget, Pruitt Says
Mar 10, 2017 | BNA Daily Environment Report
By Nushin Huq
The EPA is in the early stages of talking to the White House about its budget, but these discussions have been largely positive, agency administrator Scott Pruitt said.
The Environmental Protection Agency is looking at everything from downsizing regional offices to empowering states to take lead roles in regulating air and water pollution, according to Pruitt.
“What's key is that this is the beginning of the process,” he told Bloomberg BNA March 9 ahead of his speech in Houston at IHS Markit's CERAWeek, an annual energy conference. “It's something that plays out over a period of time.”
A recent proposal from the Office of Management and Budget calls for a 20 percent cut to EPA staff and slashing the agency's budget by 25 percent. Under the proposed spending plan, the EPA could reduce grants to states by 30 percent in fiscal year 2018, putting about 20 grants on the chopping block. There also have been reports that the agency will reduce the number of regional offices from 10 to eight.
The White House budget proposal is set to be released next week.
Regional EPA offices play an important role, Pruitt said, calling them an outpost that's there to help inform and formulate decisions in Washington. All that will be reviewed when the agency decides how many regional offices should remain operational.
Pruitt said he wants states to take a lead role in regulating air and water pollution and the federal government to play a partnering role. Most states have their own environmental regulator, which has expertise and resources that federal regulators don't have, he said.
There's determination, commitment and a belief across-the-board on the importance of partnering with states, Pruitt said when asked about safeguarding EPA state and tribal grants. He didn't expand on whether those grants will be reduced or by how much.
Another area of interest are more than 1,300 Superfund sites, according to Pruitt.
“We're going to come in and show true tangible environmental benefits and getting those sites cleaned up,” he said. “There's also the Brownfields Program, a variation of that, local community level.”
Senate Confirmations
Pruitt hopes the Senate confirmation process to fill EPA positions will begin soon, though he didn't offer a time frame. There are many positions, not just within the agency, that require Senate confirmation, making it difficult to predict when positions such as EPA general counsel and deputy administrator will begin.
“There are many names that I think are in the hopper process,” Pruitt said. “We'll work to get our names there and process those in a good, timely way. We've tried to do all we can to get those names vetted and discussed, evaluated, but it takes a little time.”
Pruitt could fill some positions with transition people and said his focus won't be on whether those individuals are inside the agency or outside, but where they fit in the EPA's mission.
“That's going to be the focal point,” he said.
Clean Power Plan
The U.S. Supreme Court's decision to stay the Clean Power Plan, which limits carbon dioxide emissions from power plants, and its narrowing of the tailoring rule, which set greenhouse gas permitting requirements for large stationary sources of air emissions, provide strong arguments for rolling back the Clean Power Plan, Pruitt said.
An administrator just needs reasonable basis to withdraw a rule, he said.
“The Supreme Court said it's [Clean Power Plan] likely unlawful,” Pruitt said. “To issue a stay, the legal standard, the two part standard, the most important in my view, is the court's determination that a particular decision is likely. And in this instance, likely unlawful.”
The stay provides reasonable basis, and the agency's resources are better spent in other ways, he said.
Infrastructure
Pruitt has been in several meetings at the White House to discuss water infrastructure, something he is excited about, he said.
“The president has asked me to serve on a group of Cabinet officials with respect to water infrastructure,” Pruitt said. “I was in a meeting as recent as yesterday with a group of CEOs from across the country. The president acknowledges that the infrastructure package is not just road and bridges.”
Conference Speech
In the past couple of years, there's been a mind-set that you can't be pro-energy and pro-environment, Pruitt told conference attendees during a luncheon address. That simply is not true. One can be pro-growth and pro-environment, he said.
There's been a disregard for process by federal agencies for the past couple of years, according to Pruitt. Litigation has driven the regulatory agenda, he said by having lawsuits and consent agreements filed instead of rulemaking.
“The sue-and-settle practice through consent decrees has been something that the EPA and other agencies have used, I think, to the detriment of the people that we serve,” Pruitt said. “That will change under our administration.”
Other agencies, such as in health care and finance, have used guidance documents to engage in rulemaking. That abuses the process that Congress has set up, he said. “We're going to respect process,” Pruitt said.
Part of the problem is that Congress, in some instances, has not done its job, he said.
“It puts an agency in the executive branch in a difficult position because you don't have a framework. They haven't spoken,” Pruitt said. “Each of the branches needs to do its job.”
Methane
The EPA withdrew its request for information sent to oil and gas companies on methane emissions because first there needs to be a discussion around methane, how to better capture it and ensure that it's used in a productive way, Pruitt told IHS Markit Vice Chairman Dan Yergin, in a question-and-answer after his speech.
“Sometimes, regulators don't realize that methane is valuable,” Pruitt said. “It needs to be captured and used. So it's not waste per se. Now it can cause harm to the environment; it can cause harm to individuals.” He said it was premature to ask for information on methane before having a discussion about it.
Power
“Regulators shouldn't use their power to pick winners and losers,” Pruitt told Yergin. “We ought to set standards. We will set standards that will better inform you as you make decisions.”
The baseload energy is important to the grid, and consumers pay for the investment, Pruitt said. Government interference on what type of generation to promote could lead to stranded costs that are passed on to consumers.
The agency should set goals and let industry figure out how to achieve them, Pruitt said. Some current regulations are examples of regulatory over-reach, like the Clean Power Plan, he said.
“What can we do to provide better outcome for air attainment,” Pruitt said. “The air attainment issues, as far as the NOx program, we're at 40 percent now, what should we be five years now?”
Instead of making rules, the agency should make goals and work with industry on how to achieve those goals, he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106851341&vname=dennotallissues&fn=106851341&jd=106851341
-
Scott Pruitt Will Have to Change EPA Policies—And Culture
Mar 9, 2017 | The Hill - Congress Blog
By Merrill Matthews
Scott Pruitt may face the biggest challenge of all of President Donald Trump’s Cabinet appointments. That’s because the Environmental Protection Agency, more than any other federal agency, is dedicated to a cause rather than the public.
The agency’s budget is relatively small at $8.1 billion for 2016—for comparison, the Department of Energy’s 2016 budget was $30 billion. And nearly half of it is distributed in “grants to state environmental programs, non-profits, educational institutions, and others,” to support its mission of “protecting human health and the environment,” according to the agency.
Actually, the agency does much more than that—and that’s the problem.
As attorney general of Oklahoma, Pruitt tried to constrain the EPA by leading or joining several multistate lawsuits challenging the agency’s regulatory mischief, especially with respect to air, water and carbon emissions.
For example, in West Virginia v. EPA, 29 states challenged the EPA’s authority to regulate CO2 emissions at existing electricity-generating power plants under a little-used provision in the Clean Air Act. This novel approach prompted the Environmental Law Reporter to note, “… the fact that so many fundamental legal questions about the scope of EPA’s authority have not yet been conclusively resolved by the courts introduces a level of legal uncertainty that has seldom been seen in the Agency’s 40-plus year history of regulating air pollution.”
Having challenged the EPA from the outside, Pruitt now has the opportunity to challenge—and remake—it from the inside. Here are some needed changes:
Eliminate non-essential and insubordinate personal. The EPA has 15,000 employees. It’s a fair guess that many of them aren’t just trying to protect the environment; they’re trying to rid the world of fossil fuels.
Some of the employees may try their best to undermine Pruitt’s—and President Trump’s—policies, which is why the head of Trump’s transition team reportedly wanted to cut the number to 5,000. Best to show such ideologues the door so they can work for private sector environmental groups. They will be much happier—and so will taxpayers who no longer have to pay their salaries.
Limit the EPA to its intended purpose. One of Pruitt’s biggest challenges will be to determine what the EPA is actually supposed to do under the law. The agency has been so aggressive in expanding its own agenda that it may be hard to disentangle its legitimate functions from its ideological ones.
Fortunately, Pruitt has played a major role in challenging the EPA’s efforts to micromanage state environmental policy, and he will have a pretty good idea where to start.
Roll back CAFE standards and ethanol mandates. CAFE standards require auto manufacturers to meet government-imposed fuel economy standards across a fleet of cars, forcing carmakers to make light, inexpensive—and less profitable—regular and hybrid cars with high fuel economy to offset the trucks and SUVs that most consumers want.
Those mileage requirements were dramatically increased by the Obama EPA—to an average of 50 mpg by 2015. Scaling back the standards—or better yet, eliminating them completely—would make it easier for automakers to manufacture small cars in the U.S., a top goal of the new president. Eighteen major auto manufacturer CEOs just sent a letter to the White House asking for relief from the current standards. Now news reports indicate the Trump administration will reopen its emissions review.
In addition, Pruitt should also roll back the biofuels mandate that requires ever-increasing amounts of ethanol to be mixed with gasoline. Congress will have to act to eliminate the mandate completely, but the EPA has the power to postpone the increases—at least it did under the Obama administration.
End the war on carbon. The Obama EPA, bolstered by a 2007 Supreme Court decision, declared war on greenhouse gases, and especially carbon. It used that power to impose dramatic and costly new regulations on states and businesses.
Reducing our carbon footprint is important, and the U.S. has been doing exactly that—and, incidentally, doing a better job than most countries that rail against climate change. But managing carbon should not undermine economic growth.
The goal should be the cleanest possible environment consistent with a thriving economy. In fact, only a prosperous, growing economy has the time and resources to ensure a clean environment.
Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas.
http://www.thehill.com/blogs/congress-blog/energy-environment/323193-scott-pruitt-will-have-to-change-epa-policies-and
-
Trump Aides Weighing Staying in Paris Deal, Rejecting Obama Pledge
Mar 9, 2017 | PoliticoPro
By Andrew Restuccia
Trump administration officials are considering a plan to remain part of the nearly 200-nation Paris climate change agreement, while weakening former President Barack Obama’s pledge to reduce U.S. greenhouse gas emissions, multiple sources told POLITICO.
The plan has not yet won the buy-in of key Trump aides and the president has not signed off. Sources familiar with the plan cautioned that it remains in flux, and could be scuttled by Trump advisers who are critical of the agreement.
But keeping the U.S. in the 2015 Paris pact would be a victory for some in the Trump administration, including the president’s daughter Ivanka and his son-in-law Jared Kushner, who have sought to boost the president's green credentials and fear that pulling out would damage relations with key U.S. allies. Many conservatives have been pushing President Donald Trump to withdraw from the deal altogether, as the president himself pledged to do during the campaign.
One way to square those conflicting imperatives would be to reject the pledge that Obama offered as part of the 2015 Paris pact — a non-binding target for reducing the United States’ emissions of planet-warming greenhouse gas emissions. That’s increasingly seen within the White House as a possible way forward.
Obama had pledged that by 2025 the U.S. would reduce its greenhouse gas emissions by 26 percent to 28 percent below where they were in 2005.
Weakening Obama's pledge would probably frustrate many American allies, who see the United States' commitment to tackling climate change as a bedrock of the Paris agreement. It would also reflect the likelihood that Trump's push to revoke key Obama environmental regulations would make it more difficult to meet the existing target.
George David Banks, a White House senior adviser on international energy and environmental issues, has briefed people outside the administration on the plan in recent days, according to people who have spoken with him.
Banks discussed the plan during a Thursday meeting with about a dozen fossil fuel industry officials, according to people familiar with the closed-door discussion.
Banks did not respond to a request for comment. A White House spokeswoman said, "We have no announcements to make at this time."
It's unclear when the Trump administration will announce a final decision on its approach to Paris. Sources cautioned a verdict may not be made public for weeks or even months, and could hinge on broader energy-related discussions with other countries.
Ivanka Trump and Kushner, a senior adviser to the president, have been strong advocates of staying in the agreement, sources said. And other advisers raised fears that withdrawing altogether would greatly damage U.S. diplomatic relations with other countries.
Trump’s appointees are separately taking steps to revoke regulations requiring cuts in greenhouse gas pollution from the nation's power plants, among other rollbacks of Obama-era environmental rules.
Those regulations were the bulwark of Obama’s promise that the United States, the world’s second-largest carbon polluter, would do its share to address the problem — even though scientists have said steeper cuts are needed to avoid catastrophic harm from climate change.
Trump’s advisers have sometimes been at odds over how to approach Paris — and Trump's chief strategist, Stephen Bannon, is said to be advocating for withdrawing from the agreement. Bannon's influence with Trump could undercut the proposal to stay in the deal.
Some Trump supporters have even hoped he would pull out from the entire decades-old "framework" of United Nations climate negotiations. Such a step would have been even more extreme than former President George W. Bush’s abandonment of the 1997 Kyoto climate accord, which made the U.S. an untrusted figure in international climate circles for years afterward.
To clinch the Paris agreement, the Obama administration had to pull off some tricky diplomatic gymnastics, bringing together rich and poor countries that had disagreed for decades about how to divide the burden of curbing the world’s carbon output. The pact, reached in December 2015 after two weeks of negotiations in a Paris suburb, followed months of U.S. pressure on China and India to make their own commitments, despite arguments from the developing world that already-wealthy nations should be doing the lion’s share.
Ultimately, the talks were successful because negotiators allowed countries to write their own domestic pledges to tackle climate change, rather than imposing across-the-board mandates to slash emissions.
Those pledges are largely nonbinding, which enabled Obama to avoid a politically disastrous ratification fight in the Senate. But that also makes it easier for Trump to change Obama’s pledge.
Even if Obama’s target remained in place, scientists and climate activists have warned that the deal won’t cut carbon pollution enough to prevent the worst effects of climate change, including rising seas and worsening droughts and storms. Instead, they said, countries would need to steadily escalate their targets.
The agreement calls on countries to aim to limit global warming to "well below" 3.6 degrees Fahrenheit from pre-industrial levels, and it said countries should "pursue efforts" to keep temperature increases to 2.7 degrees Fahrenheit. Under a business-as-usual scenario, global temperatures could rise by between 4.7 and 8.6 degrees Fahrenheit by the end of the century, according to scientists, an increase that would have catastrophic consequences for the planet.
https://www.politicopro.com/energy/story/2017/03/trump-obama-parisplan-151282
-
A 'Freedom Caucus' for the Environment?
Mar 10, 2017 | E&E Daily
By Hannah Hess
Republican Rep. Carlos Curbelo fired back yesterday when U.S. EPA Administrator Scott Pruitt dismissed the link between carbon dioxide and global warming (Greenwire, March 9).
The Florida lawmaker, who has been speaking out about sea-level rise in his Keys-based district, said the link between CO2 and climate is based on decades of "scientific fact and the reality facing communities like my district."
"EPA is tasked with the very responsibility of helping to lower the impact of carbon emissions, and for Mr. Pruitt to assert otherwise without scientific evidence is reckless and unacceptable," Curbelo said.
While Curbelo was the most vocal in criticizing Pruitt yesterday, he is not alone: The ranks of House Republicans in the moderate environmental bloc have multiplied in the mere four months since 2016 ballots were tallied.
GOP membership in a caucus devoted to climate change has more than doubled since the start of the 115th Congress, growing from six to 14. According to a source, Republican Rep. John Faso of New York joined the Climate Solutions Caucus yesterday yesterday, the most recent addition to the bipartisan group looking at mitigation and adaptation options.
Ten Republicans who co-sponsored a resolution committing to work "constructively" to address climate change, "including mitigation efforts and efforts to balance human activities that have been found to have an impact" on warming, won their re-election bids — including in districts carried by Democratic presidential nominee Hillary Clinton.
That resolution is expected to be reintroduced, with a bigger base of support.
Nine GOP members bucked their party on the recent vote to repeal one of the Obama administration's landmark rules for protecting waterways from coal mining. Eleven Republicans voted against scrapping a Bureau of Land Management rule that seeks to curb greenhouse gas emissions from the oil and gas industry.
It's incremental progress, but advocates of climate action are embracing the growth.
"If you get 40 Republicans, then you have about the same size as the Freedom Caucus, and I consider that to be a blocking minority within the majority," said Danny Richter, legislative and science director for Citizens' Climate Lobby, a group that advocates for a revenue-neutral carbon tax and dividend plan.
We all know what the Freedom Caucus can do. They can shut down the government. They can put our credit rating at risk. And so if you get to 40 Republicans who are willing to vote as a bloc for the environment ... at that point this all becomes very, very real," Richter said.
Other factors could weigh in their favor. President Trump's approval rating has been coasting below 50 percent. Midterm elections historically do not favor the president's party. While bucking GOP orthodoxy on contentious issues like guns or health care could drive away voters, the 2016 election proved Republicans who distance themselves from Trump on climate can win.
In Florida, for instance, voters crossed party lines to re-elect Curbelo and Rep. Ileana Ros-Lehtinen while supporting Clinton. Curbelo co-founded the climate caucus, and Ros-Lehtinen is a member. Both members, who represent Miami-area districts, backed the climate resolution sponsored by retired Rep. Chris Gibson (R-N.Y.).
Pennsylvania Rep. Pat Meehan, another GOP supporter of climate action who represents the Philadelphia suburbs, easily beat back a primary challenge from the right.
Richter also noted that a month before the election, House Speaker Paul Ryan (R-Wis.) was refusing to defend then-candidate Trump. Republicans have done a good job of unifying since then, he said, but it should not be assumed that Congress will be in lockstep with Trump.
"I don't think that reflects the underlying currents," Richter said.
Ryan headlined a Miami campaign event for Curbelo in October.
Tony Kreindler, senior director of government relations at the Environmental Defense Fund, said he has seen an increasing number of Republicans come to the table to start a new and forward-looking conversation about climate change and the environment since the 2014 election.
"I think that reflects their districts, either because of climate impacts, economic opportunity or political reality. You can see it in their voting records and in their support for bills and resolutions that advance solutions, not just rhetoric," Kreindler said.
One notable step that may have flown under the radar late last session was the introduction of H.R. 6240, dubbed the "Climate Solutions Commission Act" (E&E News PM, Sept. 30, 2016).
Curbelo, Gibson and then-Rep. Bob Dold (R-Ill.) joined four Democrats in the climate caucus to roll out the bill, which would establish a 10-person commission to undertake a comprehensive review of "economically viable" government and private-sector actions that could reduce greenhouse gas emissions.
The bill went further than the "Gibson resolution" in that it recognized the need for science-based pollution reduction targets and a way of knowing whether the United States is on track to meet them.
A group of conservative elder statesmen, led former Secretary of State James Baker, gave GOP lawmakers additional cover to come out in support of climate policies in the first weeks of the Trump administration. They approached the White House with a revenue-neutral carbon tax and dividend plan dubbed the "Republican climate jailbreak strategy" (Greenwire, Feb. 8).
It was met with a thud and panned from the right by Americans for Tax Reform President Grover Norquist, the Heritage Foundation and two prominent members of Trump's transition team, foreshadowing the uphill slog such an effort would face on Capitol Hill (Greenwire, Feb. 16).
As long as current House GOP leadership and the Trump administration are in place, "it's hard to imagine any rebellion being realized," said the Niskanen Center's Jerry Taylor. There's a difference, Taylor said, between co-sponsoring an "anodyne and powerless resolution" and voting for something significant, such as a carbon tax.
Democratic strategist Jim Manley of QGA Public Affairs said he doesn't buy the "Freedom Caucus" for the environment strategy.
"I think that there are some smart Republicans that recognize something has to be done, but the party itself is still dominated by wealthy special interests that aren't willing to deal with climate change issues," said Manley, previously a spokesman for former Senate Majority Leader Harry Reid (D-Nev.).
Adele Morris, senior fellow at the Brookings Institution, observed that the environmental left has been reluctant to support pricing carbon in the wake of Trump's election.
"What I would like to see from that community is openness to say, 'OK, the [U.S. EPA's] Clean Power Plan is not going to be implemented as we thought it would under a Hillary Clinton administration and now let's engage — let's create the space for a deal,'" Morris said this week at a panel hosted by the Johns Hopkins School of Advanced International Studies.
During the GOP presidential primary, Trump said he would oppose any carbon tax or consideration of the "social cost" of carbon, a value underpinning Obama-era climate regulations (Greenwire, March 30, 2016).
But Morris hinted Trump could evolve. "Let's not count out the White House," she said.
http://www.eenews.net/eedaily/2017/03/10/stories/1060051248
-
Mar 9, 2017 | Washington Post
By Chelsea Harvey
A groundbreaking climate lawsuit, brought against the federal government by 21 children, has been hailed by environmentalists as a bold new strategy to press for climate action in the United States. But the Trump administration, which has pledged to undo Barack Obama’s climate regulations, is doing its best to make sure the case doesn’t get far.
The Trump administration this week filed a motion to overturn a ruling by a federal judge back in November that cleared the lawsuit for trial — and filed a separate motion to delay trial preparation until that appeal is considered.
The lawsuit — the first of its kind — argues the federal government has violated the constitutional right of the 21 plaintiffs to a healthy climate system.
Environmental groups say the case — if it’s successful — could force even a reluctant government to reduce greenhouse gas emissions and take other measures to counter warming.
“It would be huge,” said Pat Gallagher, legal director at the Sierra Club, who is not involved in the case. “It would upend climate litigation, climate law, as we know it.”
The landmark lawsuit was originally filed during the Obama administration. The 21 plaintiffs, now between the ages of 9 and 20, claim the federal government has consistently engaged in activity that promotes fossil fuel production and greenhouse gas emissions, thereby worsening climate change. They argue this violates their constitutional right to life, liberty and property, as well the public trust doctrine, while holds that the government is responsible for the preservation of certain vital resources — in this case, a healthy climate system — for public use.
While legal experts are uncertain as to the lawsuit’s likelihood of success, few have disputed its pioneering nature. Similar cases have been brought on the state level, but this is the first against the federal government in the United States. And in November, the case cleared a major early hurdle when U.S. District Judge Ann Aiken denied motions filed by the Obama administration, as well as the fossil fuel industry, to have the lawsuit dismissed, ordering that it should proceed to trial.
The move allowed the case to join the ranks of climate lawsuits filed in other nations, which could upend the way environmental advocacy is conducted around the world. Just last year, a court in the Netherlands ordered the Dutch government to cut carbon emissions by a quarter within five years. Similar climate-related suits have been brought and won in Austria, Pakistan and South Africa.
Shortly after President Trump’s inauguration, the plaintiffs submitted a request that the Department of Justice preserve all documents that could be relevant to the lawsuit, including information on climate change, energy and emissions, and cease any destruction of such documents that may otherwise occur during the presidential transition. The request came just days after reports began to surface of climate information disappearing from White House and certain federal agency websites.
“We are concerned with the new administration’s immediate maneuver to remove important climate change information from the public domain and, based on recent media reports, we are concerned about how deep the scrubbing effort will go,”Julia Olson, chief legal counsel for the plaintiffs and executive director of the advocacy group Our Children’s Trust, said in a statement at the time. “Destroying evidence is illegal and we just put these new U.S. Defendants and the Industry Defendants on notice that they are barred from doing so.”
The Trump administration is combating this request in its motion to stay litigation, along with its motion to appeal. The administration charges that the United States could be “irreparably harmed” if the case’s proceedings are not halted pending consideration of its appeal, claiming that “the extraordinary scope of this litigation and the concomitant scope of discovery that Plaintiffs appear to be seeking set this case apart.”
“One of the things that the government argues is that the preservation of documents itself represents a burden on the government,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. “What they’re arguing is that they’ll be irreparably injured by having to go through discovery here.”
This, he added, “sends kind of the wrong signal, or at least a very dangerous signal, in terms of what the government’s priorities are or what it’s thinking of doing. It shouldn’t be any kind of burden for the government to preserve documents that are already in existence.”
But given the broad implications of the case for U.S. climate action, especially if the plaintiffs prevail, “it’s not surprising that the Trump administration would want to quash it,” said Gallagher, the Sierra Club legal director.
If the case were successful, the federal government would be obligated to take meaningful action against climate change, probably through a planned reduction in greenhouse gas emissions. This type of order would run counter to the current administration’s priorities. On Thursday, Scott Pruitt, the EPA chief, rejected the underlying science of climate change, and the administration has indicated its intent to cancel a number of Obama-era climate and environmental regulations, including the Clean Power Plan, and withdraw from the Paris climate agreement.
Whether either of the federal government’s most recent motions will hold up remains to be decided. According to Burger, this largely depends on Aiken, the federal judge who ordered that the case proceed to trial, who essentially must sign off in order for the appeal to take place.
“In order to do that, the judge needs to basically agree that there are issues of law that could be determinative that the case would be better served if the Ninth Circuit [Court of Appeals] heard it now,” Burger said. Appeals most typically occur after a final opinion on a case has been reached through trial, he noted, pointing out that although it’s “common enough for parties to seek interlocutory appeal, it’s the exception rather than the rule that it be granted.”
A stay of the proceedings, pending appeal, is also subject to Aiken’s decision. This means there are multiple combinations of outcomes that could occur for the case’s proceedings.
“It’s conceivable that Judge Aiken could certify her order on the motion to dismiss for interlocutory appeal and not grant a stay on the proceedings,” Burger noted. In this situation, the case would be heard in the Ninth Circuit Court of Appeals, which would essentially decide whether it should proceed on the basis of the claims the plaintiffs have already set forth, while at the same time continuing through discovery at the district court level, he said.
Regardless of the final outcome, legal experts have highlighted the lawsuit’s importance as a novel approach to the climate issue in the United States. “It could spawn a whole new universe of litigation at both the state and the federal levels,” Gallagher said.
https://www.washingtonpost.com/news/energy-environment/wp/2017/03/09/this-climate-lawsuit-could-change-everything-no-wonder-the-trump-administration-doesnt-want-it-going-to-trial/?utm_term=.7837dbeb7928
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News
Environment News
Add recipients
Suggested