Preview Newsletter
ACC PM 3/29/2017
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(ACC Mentioned) Industries Seek to Delay Suit Over EPA's RMP Revisions
Mar 29, 2017 | Inside EPA
Chemical manufacturers and other industry groups are seeking a stay of their lawsuits challenging the Obama administration's final rule overhauling EPA's facility accident prevention program while the Trump administration weighs revisions to the rule, saying any changes EPA makes could make the litigation unnecessary. -
(ACC Mentioned) ACC Presses EPA to Restrict Scope of Chemical 'Uses' for TSCA Reviews
Mar 29, 2017 | Inside EPA
By Maria Hegstad
The American Chemistry Council is pressing EPA to restrict the scope of chemical "uses" it considers for the first 10 substance reviews it is planning under the revised Toxic Substances Control Act (TSCA) authority, arguing the agency should only look at the chemicals' current uses rather than all possible uses of the substances. -
Experts Agree EPA Review of Dioxane, Other Toxic Chemicals is Needed
Mar 29, 2017 | M Live
By Ryan Stanton
From a public health standpoint, there's a lot at stake in how the U.S. Environmental Protection Agency decides to implement new rules and regulations for toxic chemicals in the coming years. -
The Misguided Regulatory Accountability Act
Mar 29, 2017 | Reg Blog
By Martha Roberts
Many of the features of the Regulatory Accountability Act render it a disastrous piece of legislation for public health, safety, and the environment. -
Known Knowns and Known Unknowns: Getting an Accurate, Transparent and Up-to-Date TSCA Chemical Inventory
Mar 29, 2017 | Environmental Defense Fund
By Richard Denison
A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets. -
(ACC Blog) ‘BPA-Free’ Meets ‘Fake News’
Mar 29, 2017 | American Chemistry Matters
By Steven Hentges, Ph.D
Thanks to years of attention to bisphenol A (BPA), used primarily to make polycarbonate plastic and epoxy resins, there is now quite a bit of attention to various alternatives described generically as “BPA-Free“. -
(ACC Mentioned) Trump Order Could Impact U.S. Energy Prices, Technology Development
Mar 29, 2017 | Chemical & Engineering News
By Jeff Johnson
President Donald J. Trump’s March 28 order to reexamine or kill a host of federal actions to combat climate change might help lower U.S. energy prices but will hurt development of new energy technologies. And it is likely to mean the U.S. will miss its emissions targets under an international climate change accord. -
Trump Launches Review to Unwind Clean Power Plan
Mar 29, 2017 | E&E Interactive
By Emily Holden
President Trump yesterday issued an executive order to begin the process to roll back U.S. EPA's Clean Power Plan. -
Trump Order Scrambles Epic Legal Standoff
Mar 29, 2017 | E&E Energywire
By Ellen M. Gilmer
President Trump's executive order aimed at scrapping Obama-era climate actions scrambles existing litigation and sets the stage for high-stakes courtroom battles to come. -
Trump Signs Order at the EPA to Dismantle Environmental Protections
Mar 29, 2017 | Washington Post
By Brady Dennis and Juliet Eilperin
The email arrived at lunchtime Tuesday from a top aide to Environmental Protection Agency Administrator Scott Pruitt. “Our Big Day Today” read the subject line of the message, which went to thousands of EPA employees. -
Trump Lawyers Ask Court to Halt Climate Rule Case
Mar 29, 2017 | The Hill - E2 Wire
By Timothy Cama
Trump administration attorneys are asking an appeals court to hold off on ruling on whether the Environmental Protection Agency’s (EPA) Clean Power Plan is legal. -
The Big Announcement is Over. What Happens Now?
Mar 29, 2017 | E&E Climatewire
By Niina Heikkinen and Evan Lehmann
President Trump never uttered the words "climate change" yesterday as he snuffed out former President Obama's plans to curb greenhouse gas emissions. -
Tax Reform an Important Part of Pro-Consumer Energy Policy
Mar 29, 2017 | The Hill - Congress Blog
By Lance Brown
Today, the House Energy and Commerce Subcommittee on Energy will convene to discuss the effects on federal energy taxes on power prices and the families and businesses who pay them. -
White House Faces First Challenge to Pipeline Approval
Mar 29, 2017 | E&E Energywire
By Ellen M. Gilmer
Environmental and tribal advocates have fired the first shot in court over the Trump administration's recent approval of the Keystone XL pipeline. -
LNG Trade Jumps After 4 Flat Years
Mar 29, 2017 | E&E Energywire
By Jenny Mandel
Natural gas exports picked up last year after several years of minimal growth, but the industry continues to adjust its expectations to weak markets and a shift in market power, industry data show. -
Florida Bill to Regulate High-Speed Rail Dies in Committee
Mar 29, 2017 | Progressive Railroading
A proposed Florida state law to regulate high-speed rail — which Brightline passenger-rail service officials said targeted their company — died in a legislative committee yesterday. -
President Shows Disregard to Environment with Executive Actions on Climate Change
Mar 29, 2017 | The Hill - Congress Blog
By Alan Lowenthal
We all knew this was coming since the November election. We hoped that reason would triumph. We even had a modicum of relief when the President, in his address to Congress, said that he wants “clean air and clean water.” -
Trump Climate Move Risks Unraveling Paris Commitments
Mar 29, 2017 | The Hill - E2 Wire
By Devin Henry
President Trump’s climate change order has thrown a wrench into the Paris climate deal. -
EPA Cites Trump Order in Bid to Halt D.C. Circuit Utility GHG Rule Suits
Mar 29, 2017 | Inside EPA
By Lee Logan
EPA is asking the U.S. Court of Appeals for the District of Columbia Circuit to halt suits over the agency's climate rules for new and existing power plants, saying President Donald Trump's energy executive order (EO) means the agency will overhaul the rules and those changes could significantly alter the outcome of the suits. -
Groups Spar Over Merits of Cross-State Air Pollution Rule as Haze Control
Mar 29, 2017 | Inside EPA
By Stuart Parker
EPA, environmentalists, states and industry in new legal filings are sparring over the merits of the Obama agency's rule allowing participation in the Cross-State Air Pollution Rule (CSAPR) emissions trading program to satisfy separate haze pollution control mandates, a policy that the Trump administration is currently continuing to defend.
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(ACC Mentioned) Industries Seek to Delay Suit Over EPA's RMP Revisions
Mar 29, 2017 | Inside EPA
Chemical manufacturers and other industry groups are seeking a stay of their lawsuits challenging the Obama administration's final rule overhauling EPA's facility accident prevention program while the Trump administration weighs revisions to the rule, saying any changes EPA makes could make the litigation unnecessary.
In a March 27 unopposed motion to hold their lawsuit in abeyance, groups including the American Chemistry Council, American Petroleum Institute, and the U.S. Chamber of Commerce cite EPA Administrator Scott Pruitt's March 13 decision granting their request for EPA to reconsider the rule as reason to stay the litigation.
“The reconsideration proceeding may resolve Petitioners’ objections to the final rule, rendering their challenge unnecessary,” the groups say. “And even if EPA does not fully address Petitioners’ concerns, the additional comments lodged during the proceeding and EPA’s responses to them will necessarily shape the parties’ briefs and the Court’s opinion.”
The groups ask the U.S. Court of Appeals for the District of Columbia Circuit to stay their consolidated challenges until June 19, the rule's new effective date. After that, the groups say they will update the court every 90 days on whether to reopen the litigation.
EPA's Jan. 13 update to its risk management plan (RMP) accident prevention program imposes new requirements for independent audits and hazard analysis, and bolsters requirements for disclosure of facility data.
While industry has argued the RMP update increases compliance burdens without improving safety, environmental and labor groups contend that the rule is needed to reduce accidents, which continue to occur despite the availability of inherently safer technologies (IST) that reduce risks but that many facilities decline to implement.
The RMP update, issued under former President Barack Obama's August 2013 executive order on improving facility safety, requires that facilities consider whether IST would improve safety, but does not mandate implementation.
Industry groups are pursuing several avenues of pushback against the rule. In February, industry petitioned Pruitt to revise rule. The same groups filed several petitions for review in the D.C. Circuit this month. Industry officials are also backing Congressional Review Act resolutions pending in the House and Senate to repeal the rule, though those measures face an uncertain future given competing priorities.
Pruitt March 13 granted an industry request for EPA to reconsider the RMP rule, and backed industry arguments that the Obama EPA had not adequately vetted all factors affecting the final rule. Pruitt also delayed the rule's effective date -- from March 21 to June 19 -- to allow time to reconsider the policy.
https://insideepa.com/daily-feed/industries-seek-delay-suit-over-epas-rmp-revisions
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(ACC Mentioned) ACC Presses EPA to Restrict Scope of Chemical 'Uses' for TSCA Reviews
Mar 29, 2017 | Inside EPA
By Maria Hegstad
The American Chemistry Council is pressing EPA to restrict the scope of chemical "uses" it considers for the first 10 substance reviews it is planning under the revised Toxic Substances Control Act (TSCA) authority, arguing the agency should only look at the chemicals' current uses rather than all possible uses of the substances.
"It is very important that the first 10 (and subsequent) risk evaluations be successful, effective, and completed within the statutory deadline. Therefore, it is important that EPA prioritize the conditions of use it will evaluate and focus on those that present the greatest potential risk to human health and/or the environment," writes ACC in recent comments to EPA.
The comments highlight an opposing stance to environmentalists and others who have suggested that that first 10 chemicals EPA reviews under the updated toxics law should consider all possible uses.
ACC filed the comments on the Obama EPA's list of 10 substances it would review for possible restrictions or bans with the new authority given it in last June's Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA). The chemicals are 1,4 dioxane; 1-bromopropane; asbestos; carbon tetrachloride; cyclic aliphatic bromide cluster; methylene chloride; n-methylpyrrolidone; pigment violet 29; trichloroethylene and tetrachloroethylene.
EPA Administrator Scott Pruitt has said the agency will push ahead with implementation of LCSA. The agency has begun scoping work to determine how the analyses will be conducted. The updated toxics law sets a Dec. 19, 2019 deadline for EPA to complete risk evaluations determining whether the chemicals present an unreasonable risk to humans or the environment -- and if so, triggering risk management rulemaking.
But some observers have raised questions about whether the Trump EPA will pursue the same list the Obama EPA proposed, given President Donald Trump's comments doubting concerns about asbestos. And ACC's comments show debate lingers about the scope of a chemical's uses EPA should consider in the evaluations.
ACC says some speakers at a February EPA stakeholders' meeting "claimed that EPA is required to examine all conditions of use, all vulnerable subpopulations, aggregate risks, continuing exposures to legacy contamination, intended and actual uses (even misuses), and incidental and cumulative exposures. It was suggested that EPA should not consider current risk management measures in place . . . based on a blanket assertion that people often do not follow risk management requirements or read labels. Notably, EPA is expected to accomplish all these tasks within the statutory deadlines. ACC is concerned that such a comprehensive approach is neither legally required nor practical."
Chemical Reviews
EPA's interpretation of changes in the statute regarding how the agency conducts its pre-market review program for new chemicals, known as the pre-manufacture notice (PMN) process, has stalled its processing of new chemicals. Industry representatives at an annual conference last month complained that EPA's PMN program, which usually processes 1000-1500 PMNs a year, has completed just 33 in the past six months, Cal Dooley, president and CEO of ACC told attendees at GlobalChem Feb. 23.
Delays are said to stem from EPA's insistence that its PMN reviews must consider all potential uses of the new chemicals in order for the agency to make the statements now required about the risks that the chemical may pose to human health and the environment. EPA's acting toxics chief Wendy Cleland-Hamnett said at the event that she and her staff are working to improve the process but must meet the statute's requirements in their reviews.
ACC in its comments argues that there is no statutory mandate for EPA to include all conditions of use in its evaluations of existing chemicals as outlined in section 6(b) of the updated toxics law. "The LCSA requires EPA to conduct risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under certain evaluated circumstances called 'conditions of use.'"
ACC argues that the statute requires EPA to scope evaluations before conducting them in order to select the chemical uses that should be evaluated. "Congress intended the scoping phase as the opportunity to focus the risk evaluation; otherwise, Congress would not have included the step," the group argues, adding that Congress could have required EPA to evaluate all uses as part of the updated TSCA, but did not.
ACC also quotes the LCSA's definition of condition of uses as "'the circumstances, as determined by [EPA], under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.' Nowhere in the statute does Congress modify 'conditions of use' with 'all.' The plain meaning of the statute does not require EPA to include 'all' conditions of use in a risk evaluation. EPA clearly has the discretion to scope the risk evaluation to include and exclude certain uses."
In addition, ACC argues that there are situations that EPA should exclude from its evaluations, among them chemical uses regulated by laws other than TSCA, accidental or misuses of chemicals, chemicals present in trace amounts or unintentionally added, and "defunct uses" of substances.
ACC says, "EPA has a directive from Congress to narrow, not expand, the universe of all potential exposures to those that are most significant in terms of risk -- current conditions of use -- not obsolete ones."
'Scarce Resources'
The trade association American Cleaning Institute (ACI) in its March 6 comments makes the same argument regarding one of the first 10 chemicals EPA has selected for evaluation, 1,4-dioxane, which is used to make soaps and detergents and can remain in the finished products as a contaminant but is not an ingredient.
"Given the extraordinarily low levels of 1,4-dioxane that might remain at trace quantities in certain materials and products, we question whether any further in-depth assessment of the unintentional presence of the substance must be undertaken and whether doing so represents a good use of the Agency's scarce resources," ACI writes. "Thus, ACI recommends that the Agency exercise its discretion to determine that the presence of unintentionally present trace levels of 1,4-dioxane in consumer and similar commercial products is beyond the scope of the risk evaluation EPA will undertake for 1,4-dioxane." ACI goes on to argue that unintended impurities or residues are not conditions of use as defined by the LCSA, nor do they meet the law's risk standard for performing an evaluation.
ACC, meanwhile, argues that EPA should ignore calls from environmental and advocacy groups to consider aggregate exposures and narrow its analyses of the risks that chemicals pose sensitive subpopulations -- as required in the statute -- to "potentially exposed or susceptible subpopulations relevant to the conditions of use."
Further, while the statute directs EPA to consider whether workers may be a potentially exposed or susceptible subpopulation, ACC argues that "Any consideration of worker exposure must acknowledge that worker exposures are regulated under the Occupational Safety and Health Act (OSHA). Given that OSHA protocols are designed to regulate risk to worker populations, it should be the unusual case where an unreasonable risk may present to a worker population under conditions of use (e.g., use of controls and personal protective equipment)."
ACC goes on to remind EPA that under section 9(d) of the revised TSCA, the agency must consult with OSHA before undertaking risk mitigation actions that would impact workers.
Best Science
ACC also reminds the agency of the new language in TSCA section 26 requiring EPA to use the best available science and the weight of the scientific evidence in its evaluations.
While the group merely defines the terms in these comments, ACC at recent hearings in Congress has raised concerns that EPA has indicated that it believes its existing practices meet these scientific standards and does not intend to make changes to its operating procedures.
For example, ACC argued before a March 9 Senate Homeland Security and Government Affairs Committee, Regulatory Affairs and Federal Management panel hearing that EPA needs to make changes to strengthen its approach and make it more transparent, such as using a systematic review approach in its analyses.
ACC in its new comments to EPA also raises concerns about the agency's use of its Toxics Release Inventory (TRI) data in the preliminary scoping information the agency released last month about each of the 10 chemicals. The group argues that the database does not include information on relevant factors relating to exposures, such as environmental fate, exposure routes and pathways.
"ACC believes TRI may have a role to play as an element in an overall approach to chemical prioritization, but it is of questionable or little value in risk evaluation, which EPA should acknowledge and explain," the comments say.
https://insideepa.com/daily-news/acc-presses-epa-restrict-scope-chemical-uses-tsca-reviews
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Experts Agree EPA Review of Dioxane, Other Toxic Chemicals is Needed
Mar 29, 2017 | M Live
By Ryan Stanton
From a public health standpoint, there's a lot at stake in how the U.S. Environmental Protection Agency decides to implement new rules and regulations for toxic chemicals in the coming years.
One of the first 10 chemicals the EPA has chosen to closely evaluate following 2016 amendments to the Toxic Substances Control Act of 1976 is 1,4-dioxane, an industrial pollutant spreading through Ann Arbor's groundwater.
The EPA's decisions in the months and years ahead will influence the levels of toxic chemicals allowed in people's homes, communities and bodies for generations to come, says Tracey Woodruff, a professor at the University of California in San Francisco and former EPA scientist and policy advisor.
"EPA has a lot to do and it really is a big job," she said, noting the agency is taking on new responsibilities with regard to evaluating chemicals used in various consumers products and industrial processes.
"We're looking at this as an opportunity for innovation," Woodruff said, mentioning "green chemistry" as a safer alternative to toxic chemicals.
"Industries that are at the forefront of removing toxic chemicals from their products will have a market advantage," she said, adding consumers are demanding less-toxic products. "So we're viewing this as a positive driver, and if we reduce toxic chemicals, we will see positive improvements in health."
Woodruff was one of four experts who discussed the new federal requirements for reviewing toxic chemicals under TSCA during a panel discussion Tuesday, March 28, at the University of Michigan's Palmer Commons in Ann Arbor.
Joining her was Gina Solomon, deputy secretary for science and health at the California Environmental Protection Agency; Tala Henry, director of the risk assessment division within the U.S. EPA's Office of Pollution Prevention and Toxics; and Nick Schroeck, an assistant law professor at Wayne State University and executive director of the Great Lakes Environmental Law Center.
While there's new movement by the EPA to look at the health risks of exposure to various chemicals following the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the TSCA last year, Schroeck observed the potential for the EPA to be weakened under President Donald Trump. Schroeck noted there already are drastic cuts to the EPA's budget proposed.
Trump's budget plan would take away $2.6 billion in funding for the EPA, nearly a third of its budget, and eliminate the Chemical Safety Board, as well as more than 50 EPA programs. Some fear that would hinder the agency's ability to enforce environmental laws and see to the cleanup of hazardous waste sites.
Trump's plan would specifically reduce the EPA's Hazardous Substance Superfund Account by $330 million and eliminate funding for efforts such as the Great Lakes Restoration Initiative. It also would reduce the EPA's Office of Enforcement and Compliance Assurance budget by $129 million.
"That makes it harder to do this work," Schroeck said, encouraging those who attended Tuesday's forum to call their representatives in Congress. "Particularly if they're Republican, but Dems as well, and let them know you believe in having strong regulatory agencies to protect our environment and public health."
There was some discussion of Trump's "one-in, two-out" executive order, under which the approval of a new regulation can come only if two existing regulations are stripped away. Asked if that applies to EPA regulations for toxic chemicals, Henry said she's not aware of any exceptions to Trump's order.
Henry discussed what's changing with TSCA, which now is amended for the first time in 40 years.
Henry said the new law gives the EPA clear authority and mandates to assess chemicals like never before.
"I think you've seen and heard how much effort is going to have to go into this, and we're under extremely ambitious timeframes," she said.
For the first time, the law requires the EPA to evaluate the safety of existing chemicals in commerce, starting with those most likely to cause risks. It also requires the EPA to evaluate both new and existing chemicals against a new risk-based safety standard that takes into account vulnerable populations.
The EPA views the law as a major victory for chemical safety, public health and the environment, saying it addresses fundamental flaws in TSCA that have for decades limited the EPA's ability to protect the public from dangerous chemicals.
It also includes provisions intended to increase public transparency by limiting the ability of corporations to claim certain chemical information is confidential.
Henry, who has worked for the EPA for more than 20 years, said the changes to the law affect both new chemicals that companies bring to the EPA and have never been in commerce before, as well as tens of thousands of existing chemicals. The EPA will be doing risk assessments for both.
For new chemicals, she said, the EPA will be required to conduct an assessment and make an affirmative finding of whether a chemical is safe before it can go on the market. Previously, if the EPA did not take action within 90 days, she said, chemicals could go on the market.
If the EPA determines a chemical presents an "unreasonable risk," the EPA has regulatory options to address the risk, including conditions under which a chemical still could be allowed in commerce, Henry acknowledged.
Under the previous law, roughly 62,000 chemicals already in commerce were essentially grandfathered in four decades ago, with no requirements for the EPA to assess their toxicity. Now the EPA is required to do so.
Henry noted those assessments will be done using only a risk-based safety standard, not considering cost or any other economic factors.
"And the big thing here is when we do find risk, there's no sitting around on it. You need to move to address those risks by rule making," she said.
Henry said not all of the roughly 85,000 chemicals currently on the TSCA inventory are still in commerce. She said the EPA will be working to clean up the list to determine which ones are still actively being used.
What the law really aims to do, Henry said, is set up a pipeline by which the EPA will continuously review and assess existing chemicals for safety.
To turn that legislation into regulation, Henry said the EPA has been working to make a series of new rules for the prioritization and evaluation processes. The EPA is working to meet June deadlines for some of the final documents.
The EPA announced the first 10 existing chemicals it plans to evaluate under reforms to TSCA back in November, placing dioxane on the list. The EPA also is taking a fresh look at the dioxane plume that's been spreading through Ann Arbor for decades, originating from the Gelman Sciences property on Wagner Road, to determine whether an EPA Superfund cleanup is warranted.
The EPA is working to finalize plans for reviewing the 10 chemicals, and the final risk evaluations need to be completed within three years.
The evaluations will determine whether the chemicals present an unreasonable risk to humans and the environment. If it's determined a chemical presents an unreasonable risk, the EPA must mitigate that risk within two years.
Asked what would happen if the EPA misses a statutory deadline, panelists agreed anyone could take the agency to court to try to force compliance. And in the case of dioxane, Solomon said, there probably would be some people in the Ann Arbor area who would consider doing so.
"Speaking as someone who has been both on the outside and the inside of government, it really, really matters to have people out there -- both scientists and non-scientists -- bugging government agencies to act," Solomon said.
She said there are a lot of public meetings and hearings when it comes to these types of regulations, and representatives of affected industries are often there to make their voices heard, but often there aren't many citizens offering another academic or non-governmental perspective.
"We do notice when suddenly there are people bringing their viewpoint to us from the community or from scientific organizations," she said.
"Fundamentally, we're trying to make our decisions based on science, but it's not all science. We've got law, we've got policy, we've got to juggle priorities and move things forward, so don't think that you're being ignored."
Woodruff agreed it's important for citizens to be engaged in the process, as regulatory agencies such as the EPA have a lot of power to make decisions and interpret the law. She said the people talking to the EPA will have influence.
"There's so much science and information out there that it's very difficult for regulatory agencies to keep up on all of it, and so you bringing that to them is important because they don't always see it all," she said. "They don't have time, they're busy, there are competing demands."
Vince Caruso, a member of the local Coalition for Action on Remediation of Dioxane and the Allen's Creek Watershed Group, raised concerns about the Gelman dioxane plume at Tuesday's forum. He's among those hoping the EPA's review of the situation will lead to a federal Superfund cleanup.
"We don't find our DEQ adequate, and we're so glad that EPA is out there to maybe watch our backs," he said, raising concerns that dioxane could get into Ann Arbor's municipal drinking water and people's homes.
"We pressured the DEQ to do near-surface water tests and they're finding 1,4-dioxane in the near surface, so ... it could also be percolating in people's basements. So that's a very near-term issue that we're worried about."
Given the current situation in Washington, Caruso asked about potential impacts on the Superfund program, which he described as a last bastion of hope for some communities such as Ann Arbor dealing with toxic pollution in the environment.
"When Superfund was created, there was a tax on the petrochemical industry to basically pay for it," Schroeck noted, recalling the tax expired more than 20 years ago and funding for the program has been reduced over the years.
"It requires an appropriation from Congress to put money back into the fund, so relying on Congress to put money into a fund to do environmental cleanup or remediation, I think, is a dicey proposition at best," he said. "We've actually seen reduced money going into the Superfund program over time, so I would say that your concern is certainly warranted."
Solomon said there's a lot of science out there now, including some indicating children in the U.S. are at an unacceptably high risk of developing neuro-developmental disorders, including autism and intellectual disabilities, and there are multiple causes, including environmental factors.
"So what about these chemicals in our environment that I've alluded to? Well, there are a lot of them," she said, noting there are about 85,000 chemicals in the U.S. chemical inventory, not all of which are still actively being produced.
"But there are probably certainly well over 10,000 to 20,000 chemicals in products -- maybe more -- that are in widespread use out there around us pretty much every day, and between 1,000 and 2,000 chemicals enter the market each year," she said. "And therefore, there's this sort of constant influx of new chemicals that needs to be considered along with this backlog of old chemicals."
Solomon cited statistics indicating about 10 trillion pounds of chemicals are produced annually in the U.S.
She talked about what some refer to as "toxic ignorance," the fact that little is known about many of the chemicals in the environment because they either have not been adequately tested or tested at all.
As someone with a medical background, Solomon said it's frustrating to be standing face to face with someone who might be worried about, for example, dioxane in their well water, and have to tell them not a whole lot is known about the health risks because there hasn't been enough testing.
She's hoping the EPA reviews will fill in more gaps in data and lead to safer alternatives to toxic chemicals.
"We do have something that we need to address because chronic diseases are going up in many populations," Woodruff said, adding teen cancers are going up and more young people are experiencing colorectal cancer.
She said many toxic chemicals are still unregulated because of the weakness of TSCA prior to the new law being passed.
Aside from the benefits of improved health and reduced health care costs, Woodruff suggested there's a strong business case for federal environmental regulations, which she said can promote industry innovation, provide certainty and create a level playing field for businesses.
She said there still are many things left undefined by Congress in the new law and left up to the EPA to implement, including defining "unreasonable risk."
"How that will be defined will greatly influence what chemicals will be regulated or not, because that's the gatekeeper before you move into the risk management phase, and the EPA, as was mentioned, is in the initial phases of defining what will be unreasonable risk," Woodruff said.
Woodruff said said the chemical industry came to Washington, D.C., to work out amendments to TSCA in part because states were passing their own versions of chemical policy reform due to inaction at the federal level.
Now, under the new law, when the EPA takes action on certain chemicals, states will not be allowed to act on those chemicals after that, Woodruff said.
"And that means it's really important that the EPA get this right, because that will influence everybody in the United States," she said.
Woodruff said she's encouraged that the EPA is acknowledging that lack of data about a chemical does not mean there's no risk.
She emphasized the importance of considering the health risks that toxic chemicals pose to young children. She said exposures to toxic chemicals actually start in utero, citing one study showing pregnant women were exposed to 43 different chemicals, including PCBs, PFOAs and PBDEs.
She said some of the chemicals are unregulated.
"If they're exposed to all of these different chemicals at the same time, they can interact together to create an increased risk, and people vary in their susceptibility," she said.
If there's a potential for harm and exposure from a chemical, she argues that should be defined as an unreasonable risk, and the evaluation of cancer and non-cancer health effects should default to no threshold.
Tuesday's forum was sponsored by the University of Michigan's Lifestage Environmental Exposures and Disease Center, among other groups.
Rita Loch-Caruso, director of the center, is a toxicologist and professor of environmental health sciences at UM. She said she's hopeful that some of what's happening now with the EPA taking a fresh look at various toxic chemicals is going to bode well for Ann Arbor and its pollution issues.
"I think there is hope," she said. "For one thing, having 1,4-dioxane as one of the first 10 chemicals that are going to be evaluated by the EPA under the Lautenberg amendment to TSCA is really a great sign. And what we've heard today was an encouragement for everyone to be engaged and be involved, whether it's a citizen activist, local politician or researcher at the university."
Loch-Caruso said she's still hoping her center can secure research grant funding from the National Institute of Environmental Health Sciences to conduct a study on the health impacts of dioxane using local data.
"I'm interested in seeing better and more research done on 1,4-dioxane and encouraging that in any way in which I can," she said.
The dioxane plume in Ann Arbor is now about four miles long and a mile wide and has polluted local lakes, creeks, residential drinking water wells and a city municipal water supply well that has been shut down.
Dioxane is classified by the EPA as likely to be carcinogenic to humans by all routes of exposure. It also can cause kidney and liver damage, and respiratory problems. Short-term exposure to high levels of dioxane in the air can cause eye, nose and throat irritation.
Just a few parts per billion in drinking water, with long-term exposure, poses a 1 in 100,000 cancer risk, according to the EPA.
Following the discovery of trace amounts of dioxane in shallow groundwater on Ann Arbor's west side last summer, the Michigan Department of Environmental Quality and Gov. Rick Snyder in October issued new emergency rules to establish stricter exposure standards for dioxane, lowering the amount of dioxane allowed in residential drinking water from 85 parts per billion to 7.2 ppb.
In doing so, the DEQ acknowledged the state's longstanding dioxane exposure criteria was not protective of public health. The emergency rules also include a new vapor-intrusion screening level of 29 ppb.
Ann Arbor, Washtenaw County, Scio Township and the Huron River Watershed Council were recently allowed by Circuit Judge Tim Connors to intervene in the longstanding Gelman dioxane plume legal case, joining the state as co-plaintiffs in trying to negotiate a revised cleanup plan with the polluter.
http://www.mlive.com/news/ann-arbor/index.ssf/2017/03/experts_agree_epa_review_of_di.html
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The Misguided Regulatory Accountability Act
Mar 29, 2017 | Reg Blog
By Martha Roberts
Many of the features of the Regulatory Accountability Act render it a disastrous piece of legislation for public health, safety, and the environment. By tying up essential safeguards in enormous amounts of red tape, the legislation would covertly undermine longstanding protections for child safety, food safety, auto safety, and other broadly shared values.
But the key problem is not just that the Regulatory Accountability Act would impose needlessly convoluted, burdensome requirements on federal agencies: it is that it would impose needlessly convoluted, burdensome requirements that we know have failed in the past.
The Regulatory Accountability Act would resurrect many of the worst features of the former, failed Toxic Substances Control Act (TSCA). TSCA was supposed to protect the public from dangerous chemicals, but for many years—before the recent enactment of reforms aimed at curing its substantial defects—it made regulatory decision-making so burdensome, that it effectively prevented regulators from doing their jobs.
The U.S. Environmental Protection Agency’s (EPA) failed attempt to regulate asbestos under the pre-reform TSCA offers a telling example of how important safeguards are stymied under this decision-making framework. Over 25 years ago, EPA had tried to employ TSCA to protect the public from asbestos. The Agency spent 10 years analyzing asbestos’ effects on health and considering policy options along with their economic implications. After this exhaustive investigation, documented in over 45,000 pages of supporting materials, EPA issued a final rule that called for a phased-in ban on the use of asbestos in commercial products.
But EPA’s efforts to protect the public were rejected. Asbestos manufacturers sued, contending that EPA’s meticulous decision-making was still inadequate to meet the onerous standards of TSCA. A court agreed, vacating the rule in 1991 on the basis that “EPA failed to muster substantial evidence to support its rule” under TSCA’s mandates—despite the Agency’s voluminous record justifying a phase-out of asbestos. Following this ordeal, EPA all but gave up, never again trying to ban a chemical under the old TSCA.
In the years following the asbestos fiasco, broad agreement began to emerge that TSCA was a failure due to its inability to protect Americans and to provide certainty to businesses. In a bid to address these deficiencies, Congress finally reformed TSCA last year through legislation that was passed with overwhelming bipartisan support.
The Regulatory Accountability Act would reverse this progress, with implications far beyond TSCA—major aspects of the Regulatory Accountability Act would resurrect features of the pre-reform, failed TSCA and apply them to all federal safeguards. That bears repeating: passage of the Regulatory Accountability Act would impose requirements similar to those that had doomed the old TSCA and extend those requirements to all federal agencies, with detrimental implications for the development of new food safety requirements, veterans’ care standards, pollution controls, and other essential protections for public health, safety, and the environment. I discuss two key examples below.
First, the Regulatory Accountability Act would impose an unworkable, cost-based decision standard, setting up agencies for paralysis by analysis that would obstruct protections for Americans.
The pre-reform TSCA demanded that EPA prove it had selected the “least burdensome” regulatory option when promulgating a rule. If EPA had wanted to adopt an option any more burdensome than the “least burdensome” one—for example, banning the sale of asbestos, instead of just labeling asbestos-containing products—TSCA required that the Agency perform a full risk analysis and cost-benefit analysis of every less burdensome alternative, and prove each alternative was insufficient to address the risk. These requirements imposed evidentiary and analytic burdens on EPA that proved impossible to meet, effectively tying the Agency’s hands with respect to protecting the public from hazardous chemicals.
The newly reformed TSCA eliminated all of these problems in the service of regulatory efficiency and certainty. Under the reformed statute, EPA is required to demonstrate that it has considered key factors—including costs and risk—and has reached a rational conclusion. But it is not required to prove that its decision meets a specific cost-based decision metric, as it was under the pre-reform TSCA.
Yet the Regulatory Accountability Act would revive the pre-reform TSCA approach, imposing an onerous analytic cost-based standard for major protections. All federal agencies generally would be required to prove that their rule met the specific analytic standard laid out in the Act. The Act would also require agencies to consider and analyze substantial alternatives or other responses identified by interested persons, without imposing any clear limit on how many alternatives that would entail, and regardless of whether information concerning those alternatives was reasonably available. In addition, for major or high-impact rules, agencies would have to conduct formal cost-benefit analysis and other analyses on each such alternative. Any deviation from these nitpicky procedures, meanwhile, could prompt a court to toss out the promulgated regulation, regardless of the threat to the public as result of the regulation’s demise.
A second example of how the Regulatory Accountability Act would resurrect failed features of the pre-reform TSCA law would be through its imposition of a requirement on agencies to hold needless, burdensome public hearings. The pre-reform TSCA allowed any person to request a hearing on any rule. These hearings allowed for witnesses, cross-examinations, oral presentations, and other onerous, unnecessary hearing procedures to resolve material issues. This feature of the statute created a powerful opportunity for critics to slow down the rulemaking process, and it duplicated many other aspects of the law that already provided ample opportunity for the public to comment and provide feedback. Not surprisingly, this requirement was thoroughly rejected and excised from the new, reformed TSCA.
Nevertheless, the Regulatory Accountability Act would reinstate this failed requirement and apply it broadly to the development of all government safeguards. Under the bill, any person would be able to request a hearing on any major or high-impact rule, except in certain narrow circumstances. EPA would have to hold a hearing if any factual issue was in dispute—which is virtually always the case for someone. With this approach, attorneys would argue over science-based determinations made by agency scientists in needless show trials. Any individual seeking to delay a rulemaking could use this provision to draw out and delay protections for Americans.
The Regulatory Accountability Act may sound innocuous, but it puts our health, safety, and environment at risk. Imagine a world where efforts to update food safety requirements in the face of a pressing health threat were stymied. Or attempts to establish new protections after a disaster like the Deepwater Horizon oil spill were thwarted. Or efforts to protect the public from asbestos were derailed.
This is the world that the Regulatory Accountability Act would create, across all areas of government. This blandly titled bill is deeply flawed and deeply problematic—a sneak attack on essential protections.
http://www.regblog.org/2017/03/29/roberts-misguided-regulatory-accountability-act/
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Mar 29, 2017 | Environmental Defense Fund
By Richard Denison
A major reform of the Toxic Substances Control Act (TSCA) made by last year’s Lautenberg Act was to set in motion a process to ensure that EPA (and the public, to the maximum extent practicable) know how many and which chemicals are actually in use today, and to ensure that the identities of any active chemicals that are not publicly disclosed constitute actual trade secrets.
In January, EPA took its first step to implement this reform by issuing its proposed rule for Inventory notification. The public comment period on this proposed rule closed recently. EDF submitted extensive comments, which are available here.
The Inventory notification requirements of TSCA as amended by the Lautenberg Act, specified under sections 8(b)(4)(A)(i) and 8(b)(4)(B)(ii), have two interlocked purposes:
to ensure EPA has a full and current list of all chemical substances on the TSCA Inventory that are actively being made and processed – paramount to many other aspects of the law, especially the prioritization and risk evaluation provisions of section 6 and, more generally, in providing an up-to-date understanding of the magnitude of chemical production and use within the scope of TSCA relevant to long-term planning and resource allocation; and
to ensure that the only active chemicals not identified by name on the Inventory are those whose identities are actual trade secrets, by requiring reassertion, substantiation and EPA review of any prior confidential business information (CBI) claims a company has made and seeks to retain to protect its chemicals’ identities from public disclosure on the updated Inventory.
Many of EDF’s comments are aimed at ensuring that EPA’s proposed rule serves both purposes and is fully in compliance with the law. In contrast, many comments received from industry interests would pit the first objective against the second and do so in ways that would not comply with what the law requires.
As detailed in EDF’s submitted comments, the law is quite straightforward in what it requires in the Inventory notification process:
Each manufacturer must, within 6 months of promulgation of this final rule, notify EPA of each chemical on the current TSCA Inventory that it has manufactured during the 10 years preceding the new law’s date of enactment (which are then deemed to be “active” chemicals). [Section 8(b)(4)(A)(i)]
If the manufacturer wishes to continue to protect from disclosure the identity of its active chemical on the updated Inventory, it must include a request to do so in its notification to EPA. [Section 8(b)(4)(B)(ii)] This option is limited, of course, only to chemicals that are currently on the confidential portion of the Inventory.
EPA can require chemical processors to do the same. [Section 8(b)(4)(A)(i)]
The first requirement of the law – that each manufacturer must notify EPA of each active chemical it manufactures – is not only intended to serve the first objective of Inventory notification; it is essential to achieving the second objective of ensuring that chemical identities that are not or are no longer trade secrets are not hidden from the public.
Some industry interests are arguing for two approaches, neither of which is allowed under the law and both of which would preclude the Inventory notification process from achieving its second key objective. Each of these proposals is discussed below.
“One and done” is wrong and dumb
Some in the industry are pushing for an approach they have dubbed “one and done.”
Two big problems. First, the proposal would have EPA rewrite the law’s requirement that each manufacturer notify EPA of its active chemical, to instead allow that once one company has notified EPA of a chemical, no other company need do so. TSCA Section 8(b)(4)(A)(i) states (emphases added):
(i) IN GENERAL.—Not later than 1 year after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Administrator, by rule, shall require manufacturers, and may require processors, subject to the limitations under subsection (a)(5)(A), to notify the Administrator, by not later than 180 days after the date on which the final rule is published in the Federal Register, of each chemical substance on the list published under paragraph (1) that the manufacturer or processor, as applicable, has manufactured or processed for a nonexempt commercial purpose during the 10-year period ending on the day before the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
Clearly this provision requires each manufacturer of a substance on the Inventory to notify EPA if it has been manufacturing it recently. Nothing in this language allows for a subset of such manufacturers to file notices.
Second, the industry’s proposal won’t work in practice and likely won’t be desirable even to them. Recall that part of the notice a manufacturer must file is a reassertion of any existing claim to protect from disclosure the identity of a chemical the company wishes to maintain; see section 8(b)(4)(B)(ii). Such CBI claims and the basis for them are, of course, specific to the company asserting a claim. If the Inventory notification process for a chemical could stop after the first notice is received, that could well mean that only that first notifier’s CBI claim would be asserted – and even then only if that notifier had an existing claim and wished to reassert it. Under this scenario, requests to maintain existing CBI claims originating with other manufacturers of that same chemical might well not be received by EPA.
In this context, the law is clear that the identity of any active chemical for which no requests are received through the Inventory notification process to renew an existing CBI claim must be disclosed to the public [section 8(b)(4)(B)(iv); emphasis added]:
(B) CONFIDENTIAL CHEMICAL SUBSTANCES.—In promulgating a rule under subparagraph (A), the Administrator shall—
(iv) move any active chemical substance for which no request was received to maintain an existing claim for protection against disclosure of the specific chemical identity of the chemical substance as confidential from the confidential portion of the list published under paragraph (1) to the nonconfidential portion of that list.
I suspect that is not an outcome those in industry urging EPA to stop the Inventory notification process for a chemical after receipt of the first notice would be pleased with.
To try to address this problem that “one and done” would create, one industry commenter seeks to demand that EPA go through an additional, convoluted process that is not in the law at all, in order to ensure that “all potentially affected manufacturers and processors have had a full opportunity to reassert CBI claims” and that “if an ‘early’ notifier decides to waive an existing CBI claim, that action cannot itself prejudice subsequent notifiers or deprive them of an opportunity to reassert a claim.”
This tries to shift to EPA a burden that the law clearly places on companies. And it begs the question why EPA should have to provide “all potentially affected manufacturers and processors” yet another “full opportunity to reassert CBI claims” when they just chose not to take up the opportunity afforded them under the law and EPA’s proposed rule to do so via the Inventory notification process.
In sum, the new law is clear that all manufacturers must notify EPA of their active manufacture of a chemical, and that, unless one or more of those companies reassert any existing CBI claims at that time (and those claims are later reviewed and found to be warranted), the identity of that chemical is to be made public.
CBI claims are company-specific and can’t be “borrowed” by other companies
Some 17,000 chemical identities on the Inventory are confidential at present, denying the public the ability to know the full range of chemicals being made and used in the U.S. In enacting the Inventory notification provisions, Congress wanted EPA not only to update the Inventory to identify chemicals in active commerce, but also to require EPA to retrospectively review this large backlog of CBI claims to ensure that if the public is to continue to be denied access to some chemical identities, they are limited only to those that actually warrant protection from disclosure.
Congress did not intend for the Inventory notification process to be a means by which companies could assert new CBI claims for chemical identity. The intent was to provide a means for EPA to review already existing chemical identity claims to determine if they are still warranted.
Consistent with this Congressional intent, the language of the law expressly provides only for requests under the Inventory notification process to “maintain an existing claim,” not to assert a new one; see section 8(b)(4)(B)(ii). Because CBI claims are company-specific, it should not be possible for a company to seek to “maintain” a claim it did not make.
Unfortunately, EPA has proposed to allow a company to request to maintain a CBI claim for chemical identity through the Inventory notification that it had not asserted. Industry interests have supported this approach in their comments. EDF strongly disagrees: we believe this approach is not allowed by law, and it would clearly frustrate achieving the second objective of the Inventory notification process. In our comments, we argue that EPA’s final Inventory notification rule needs to specifically state that no company that had not previously asserted a CBI claim for the identity of a chemical substance can request that such a claim be maintained through the Inventory notification process.
None of this is to say that a company cannot at any point assert a new claim for CBI protection of the identity of a chemical on the confidential portion of the Inventory. The law clearly provides for that to be done – but only through the procedures and requirements of section 14. EPA should make clear that any new claim to protect the identity of a chemical must be asserted and addressed as laid out in section 14.
This is not a trivial distinction: Among other differences, the section 14 process would require EPA to review such a claim within 90 days, rather than the potentially much longer timeframe provided under section 8(b)(4)(B), (C) and (D). The much longer period (5-7 years) provided under the new law for EPA review of pre-existing CBI claims for chemical identity was an acknowledgment of the large number of such claims potentially requiring review; compounding that problem by allowing new claims to be asserted and then reviewed under the review plan would run entirely counter to the intent of this provision of the law.
Section 14 of the Lautenberg Act provides ample means to meet the needs EPA identifies in its rationale for its proposed approach:
A number of manufacturers and processors may legitimately benefit from the confidential status of a specific chemical identity, and the initial claimant may no longer exist. EPA does not believe that Congress intended for specific confidential chemical identities to be disclosed without providing the opportunity for manufacturers and processors to make a request that the identities should remain confidential simply because the original claimants no longer manufacture the chemical substances.
Section 14 provides a clear and direct “opportunity for manufacturers and processors to make a request that the identities should remain confidential.” Any company seeking to “legitimately benefit from the confidential status of a specific chemical identity” can do so simply by asserting a CBI claim for that chemical identity through the means provided under the Lautenberg Act, i.e., in conformance with the procedures and requirements delineated in section 14. To do so, there is no need for a company to seek to identify the original or any other claimant.
In contrast to both of these proposals embraced by industry, the most straightforward approach is also the one that comports with the law.
http://blogs.edf.org/health/2017/03/29/known-knowns-and-known-unknowns-getting-an-accurate-transparent-and-up-to-date-tsca-chemical-inventory/
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(ACC Blog) ‘BPA-Free’ Meets ‘Fake News’
Mar 29, 2017 | American Chemistry Matters
By Steven Hentges, Ph.D
Thanks to years of attention to bisphenol A (BPA), used primarily to make polycarbonate plastic and epoxy resins, there is now quite a bit of attention to various alternatives described generically as “BPA-Free“. Many manufacturers proudly apply a BPA-Free label to their products, even to products that never contained BPA in the first place.
The implication is that BPA-Free products are somehow better or safer than products that contain BPA. Never mind that the BPA-Free label is somewhat deceptive in that it identifies what a product isn’t made from rather than what it is made from.
The label is deceptive because you could never be harmed by something that is not present, but you could be harmed by something that is present. In that light, a BPA-Free label might be viewed as equivalent to a label that declares Buyer Beware, although a product manufacturer would never use that label.
Another topic getting a lot of attention lately is “fake news“. Perhaps it’s inevitable that these two trends would cross paths, but that’s essentially what happened recently.
It’s not only product manufacturers that are interested in BPA-Free. Many scientists have recognized an unexplored field that is ripe for research and are now conducting studies on substances that are said to be alternatives to BPA. If BPA-Free were a substance, it’s now being studied — and that’s the origin of the fake news.
A group of Chinese researchers recently published a study on a substance named fluorene-9-bisphenol (BHPF), which they said is a common alternative to BPA. The researchers reported that “[s]erious developmental and reproductive effects of BHPF … were observed in this study.” That led to alarming headlines such as “BPA Substitute Could Cause Adverse Pregnancy Outcomes,” which appeared in both popular media and the trade press.
The findings appear to be important since, according to the researchers and amplified by the media, BHPF is now present in a wide variety of plastic consumer products including baby bottles and water bottles that are labelled as BPA-Free. But, as noted by Popular Science, “none of this matters if we’re not coming into contact with BHFP (sic) – it’s only a potential problem if humans are exposed to it.”
If you’ve never heard of BHPF, you’re not alone. There’s little evidence that the substance has any commercial significance, and certainly no evidence that it’s widely used as a replacement for BPA.
Government databases from the U.S. Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA) indicate it’s uncommon in the U.S. at best, and it’s not authorized for use in any FDA-regulated products that contact food, such as water or baby bottles. The claims that BHPF is in widespread use and that people are commonly exposed to it are simply not credible.
In spite of the shortcomings of the research, and the media coverage that lacked much fact-checking, the theme of the study reveals two underlying truths. First, as suggested by the study, replacing BPA may be counter-productive if the replacement is not well-tested and found to be safe for use.
Second and more importantly, BPA is one of the best tested substance in commerce. Based on the extensive scientific data available for BPA, FDA answers the question “Is BPA Safe?” with an unambiguous answer – “Yes.”
If we listen to the science, there’s no need to replace BPA at all, especially with something of uncertain safety. So, should you be concerned about BHPF? In a word, no. You’ll probably never even come into contact with it.
A better question is whether you should be worried about products that contain BPA or are labelled as BPA-Free? The choice is yours, but keep in mind that BPA is well tested and confirmed to be safe. The replacements, well, not so much.
https://blog.americanchemistry.com/2017/03/bpa-free-meets-fake-news/
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(ACC Mentioned) Trump Order Could Impact U.S. Energy Prices, Technology Development
Mar 29, 2017 | Chemical & Engineering News
By Jeff Johnson
President Donald J. Trump’s March 28 order to reexamine or kill a host of federal actions to combat climate change might help lower U.S. energy prices but will hurt development of new energy technologies. And it is likely to mean the U.S. will miss its emissions targets under an international climate change accord.
Trump says his directive is an assault on what he calls burdensome energy regulations and policies, most of which are fossil fuel related. He says the order will also create jobs, particularly for U.S. coal miners.
Among policies targeted are the Clean Power Plan to limit carbon dioxide emissions from new and existing coal-fired power plants and regulations to control methane emissions from oil and gas drilling.
The order may contribute to a more diverse and affordable energy supply, says the American Chemistry Council, a chemical industry association. ACC adds that a variety of factors—market forces and state and regional policies, for example—are are likely to drive continued reductions in U.S. greenhouse gas emissions.
But Trump’s policy path will cost the U.S. global energy technology leadership, warns Keith E. Peterman, a chemistry professor at York College of Pennsylvania, a participant in United Nations climate negotiations, and the son of a coal worker. “The rest of the world is moving to a low-carbon future, and we are not going to turn that ship around,” Peterman says.
“Coal jobs are dying because of mining mechanization and a flood of inexpensive, abundant natural gas,” he says. “They are not coming back.”
The order, if fully implemented, would make U.S. compliance impossible with the global Paris Agreement to limit climate change.
An analysis by the consulting firm Rhodium Group finds that Trump’s order is likely to have little impact on U.S. greenhouse gas emissions in the next two years. However, U.S. emissions would end up about 14% below 2005 levels by 2025, the analysis finds. That’s well shy of 26–28% the U.S. agreed to in the Paris deal.
Responding to the executive order, the American Chemical Society says U.S. climate policy is based on “extensive science and an iterative process involving thousands of scientists that span the globe.”
The Administration has a tough road ahead in carrying out the President’s order. A top White House aide acknowledges the difficulty rescinding some of the rules targeted in Trump’s directive, particularly the Clean Power Plan. That EPA regulation was negotiated with states and stakeholders over three years, and the aide predicts a similar time would be needed to eliminate it.
http://cen.acs.org/articles/95/i14/Trump-order-could-impact-US-energy-prices-technology-development.html
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Trump Launches Review to Unwind Clean Power Plan
Mar 29, 2017 | E&E Interactive
By Emily Holden
President Trump yesterday issued an executive order to begin the process to roll back U.S. EPA's Clean Power Plan.
The order also directs EPA to review rules for methane emissions from new oil and gas sources and tells agencies to stop considering climate change and the social cost of carbon when making decisions.
The move begins a long process on the Clean Power Plan for EPA Administrator Scott Pruitt, who will have to open a new rulemaking, take comment and fight lawsuits from environmental groups and more than a dozen states. Trump's order also directed the attorney general to try to halt or delay court consideration of the rule. That will likely mean asking the U.S. Court of Appeals for the District of Columbia Circuit to hold the case that judges heard oral arguments for in September in abeyance. The court could ignore that request and issue a decision anyway.
Here's the text of the order.
A new study from the Rhodium Group shows the United States would essentially stop reducing its overall level of greenhouse gas emissions if the administration rescinds the Clean Power Plan under the order. That's even though the power sector continues to shift away from coal and toward lower-carbon natural gas and renewables.
Stay tuned while E&E News works to update the Power Plan Hub based on the recent executive action.
Read more:
Trump signed the order surrounded by coal miners at EPA headquarters. Reporter Kevin Bogardus was in the room (E&E News PM, March 28).
The administration claims nixing the CPP would prevent double-digit electricity price increases, but those numbers are on the high end of the spectrum (Climatewire, March 28).
Trump will have a hard time reviving a coal industry eroded by cheap natural gas and automation (Energywire, March 29).
The executive order is finally out. What now? (Climatewire, March 29).
Trump's order sets the stage for high-stakes court battles (Energywire, March 29).
The move also revealed cracks in the GOP approach (E&E Daily, March 29).
Have markets rendered the Keystone XL pipeline and Clean Power Plan irrelevant? (Climatewire, March 28).
http://www.eenews.net/interactive/clean_power_plan/column_posts/1060052227
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Trump Order Scrambles Epic Legal Standoff
Mar 29, 2017 | E&E Energywire
By Ellen M. Gilmer
President Trump's executive order aimed at scrapping Obama-era climate actions scrambles existing litigation and sets the stage for high-stakes courtroom battles to come.
The Obama administration's signature effort to address climate change is squarely in the order's crosshairs. U.S. EPA must review the Clean Power Plan — which seeks to slash greenhouse gas emissions from power plants — and work to revise or withdraw it as needed to support Trump's goal of bolstering domestic energy production.
The Justice Department has already asked an appeals court to halt litigation over the rule. In a filing last night, government lawyers argued that the case should be paused while EPA considers the executive order.
"EPA should be afforded the opportunity to fully review the Clean Power Plan and respond to the President's direction in a manner that is consistent with the terms of the Executive Order, the Clean Air Act, and the agency's inherent authority to reconsider past decisions," DOJ told the U.S. Court of Appeals for the District of Columbia Circuit. "Deferral of further judicial proceedings is thus warranted."
Supporters of the regulation have limited short-term options to combat the move but have promised aggressive opposition of any action EPA Administrator Scott Pruitt takes to roll back the key feature of Obama's climate legacy.
Trump's order comes after years of rulemaking and litigation over the Clean Power Plan, which was finalized in 2015 and promptly challenged by a slew of states, coal companies, utilities and industry groups. The Supreme Court in early 2016 stepped in to freeze the rule while the litigation moved forward.
Ten judges from the D.C. Circuit last year waded through briefs from hundreds of parties to the litigation and heard hours of oral arguments during a fiery September showdown. Supporters and opponents of the rule have been on the lookout since then for a decision from the court, but yesterday's executive order could derail a ruling.
"The question is, what will the court do, given the fact that [the litigation has] taken this long?" said former DOJ attorney James Rubin, now at Dorsey & Whitney. "But the answer is: Who the hell knows? You can predict what courts will do, but the Clean Power Plan has been nothing but unpredictable."
Quick action
In the near term, supporters of the Clean Power Plan have limited options to battle Trump's order.
Supporters of the rule are positioned to oppose DOJ's request to pause the litigation. Environmental and public health groups, along with states and a group of power companies, have intervened in the case to defend the rule.
"It is very unusual if not unprecedented for there to be a case to be litigated this long based on an administrative record this full that goes all the way up to an en banc hearing at an appellate court and then one of the parties says, 'Well, we don't want a decision after all,'" New York Attorney General Eric Schneiderman (D) said in a call with reporters yesterday. "That is something that is extraordinarily unusual, so we would seek a ruling from the D.C. Circuit."
New York is one of more than a dozen states that intervened in support of the rule.
Natural Resources Defense Council attorney David Doniger said environmental groups are on the same page, vowing to oppose DOJ's attempt to freeze the litigation.
New York Assistant Attorney General Michael Myers, who argued for the rule in court last fall, noted that this would not be the first time intervenors have carried on defense of a government action an administration no longer supports.
Environmental lawyers defended the Clinton-era Forest Service "roadless rule" after the George W. Bush administration announced plans to reconsider it, and they played a similar role after the Bush administration walked away from an enforcement case against Duke Energy Corp.
In more recent action, environmental intervenors have moved to continue litigation over the Obama-era hydraulic fracturing rule, even though the Trump administration has announced plans to roll back the regulation. The groups have argued that legal questions over the Interior Department's authority over fracking must be answered by the court regardless of whether a rule exists (Energywire, March 16).
Rubin, the former DOJ lawyer, noted that the court may be inclined to grant the Trump administration's request to put the Clean Power Plan litigation on hold because courts don't like issuing "advisory opinions."
"While these are fascinating legal issues, they are all contextual," he said. "The issue of deference [to EPA's Clean Air Act interpretations] is an important issue in a vacuum, but you really have to look at the regulation you're talking about. So I would be surprised if the court, being told EPA was going to change the rule, would want to then issue an opinion on the old rule."
Plus, he noted, Clean Power Plan supporters could be playing a dangerous game in pushing for a final decision that could end up being unfavorable to them.
"You could argue that it's really important to know whether EPA has the authority to go beyond the fenceline of the plant ... but to what end?" he said. "Because EPA's not going to do that anytime soon.
"And if you make that argument and you lose, then EPA can't do that in the future," he continued, "whereas if the court doesn't rule at all and EPA changes the rule, then the hope is when EPA turns back to a Democratic administration, if ever, you can try that again."
Challenging the EO?
A more daring, if far-fetched, approach to battling Trump's assault on the Clean Power Plan would be a challenge to the executive order itself.
While such presidential actions are typically off-limits to judicial review, lawyers opposing Trump's recent immigration orders scored quick legal success as courts froze the administration's new travel restrictions.
Court watchers note, however, that yesterday's order is a different animal, with extensive regulatory proceedings on the horizon before having practical effects for the climate rule. Indeed, the directive is couched in qualifiers, telling EPA to rescind or revise the rule "if appropriate" and "to the extent permitted by law."
Case Western Reserve University law professor Jonathan Adler argued that the order is likely not ripe for a court to review.
"I don't think they really have too many options," he said in an email, referring to rule supporters. "They could try to file something preemptively (as was done with the Trump regulatory EO), but I don't think any such action is ripe yet."
Environmental attorney Sean Donahue, who is helping to defend the rule, seemed to agree, noting that the order "doesn't have any legal effect" on the regulation.
"So I wouldn't foresee any challenges to the EO as to those regulations — just as there have been no lawsuits challenging Donald Trump's general statements about the CPP," he said in an email.
Doniger, the NRDC lawyer, said he needed to study the order more before commenting on whether environmental groups will seek to challenge it directly.
"It's truly possible that somebody goes in there and sues over the executive order and tries to make a big deal about it," Rubin said. "I don't think they're likely to get the kind of stay or litigation success you saw in the immigration case. It's a totally different context."
Playing the long game
Clean Power Plan supporters' most powerful legal tools lie in future challenges to EPA's actions.
After the agency completes its review of the rule and goes through a rulemaking process to rescind or replace it, supporters of the Obama administration's plan can challenge the final decision.
Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, said in a statement that "this is the first move of a long chess game that will take years to unfold, and future moves will be far more challenging."
If the agency opts not to replace the Clean Power Plan, environmentalists, states and allies will point to legal precedent in Massachusetts v. EPA, in which the Supreme Court ruled that EPA has authority to regulate greenhouse gases, coupled with the agency's subsequent finding that greenhouse gases threaten human health.
"Given the case law and the statutory structure and various Supreme Court decisions, we are very confident that EPA cannot just dismantle the Clean Power Plan and leave nothing in its place," Schneiderman said. "It has to have regulations in place on greenhouse gases, and one way or another, we're going to make sure that happens."
Rumors have circulated that Pruitt plans to attempt to roll back his agency's endangerment finding for greenhouse gases, but Trump's executive order did not address the issue.
ClearView Energy Partners analyst Christi Tezak noted that while simply scrapping the Clean Power Plan would offer industry quick regulatory certainty, Trump's EPA may be inclined to instead craft a less stringent regulation that could make it tougher for a future administration to build on.
"Do they take the strategy of saying we don't need a rule altogether, which would still leave the risk, albeit in the future, that somebody comes down and creates a new regulation?" she asked. "Or do you make the attempt to fill that gap with something ... and just do it in such a way that makes it really hard for a greener-leaning administration to modify it without congressional help?"
Any attempt by EPA to replace the Clean Power Plan with a softer rule would also face legal challenges by groups that say such an effort would likely fall short of the agency's obligation to address greenhouse gases.
"We will use every step in the administrative process to block these rollbacks," Doniger said.
Schneiderman noted that an extensive administrative record supports Obama's approach, and any attempt to weaken that would have to justify a departure from a trove of existing public comments, research and agency determinations that support the Clean Power Plan's approach, plus new comments submitted during the rulemaking process to rescind the rule.
Opponents of the rule, meanwhile, have argued that EPA could take a simpler approach to undoing the Clean Power Plan — sidestepping reconsideration of the meat of the rule and instead agreeing with challengers that the regulation is beyond the scope of the Clean Air Act.
Some have argued that the rule is barred by what's known as a "legislative glitch" in which the House and Senate passed two different versions of Clean Air Act amendments in 1990. According to one interpretation of the amendments, EPA cannot regulate power plants with the Clean Power Plan because it already regulates power plants under another section of the law (Energywire, Feb. 10).
Many court watchers have expressed skepticism about that approach, arguing that a court would quickly reject such a narrow interpretation of the Clean Air Act.
In any case, the Institute for Policy Integrity's Revesz warned that the Clean Power Plan rollback process and related litigation promise years of conflict.
"This issue might not be resolved before the 2020 election, so the fate of the Clean Power Plan might ultimately be determined by the winner of that election," he said.
http://www.eenews.net/energywire/2017/03/29/stories/1060052250
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Trump Signs Order at the EPA to Dismantle Environmental Protections
Mar 29, 2017 | Washington Post
By Brady Dennis and Juliet Eilperin
The email arrived at lunchtime Tuesday from a top aide to Environmental Protection Agency Administrator Scott Pruitt. “Our Big Day Today” read the subject line of the message, which went to thousands of EPA employees.
It detailed how President Trump would be visiting the agency, whose budget he recently proposed cutting by nearly a third, to sign a sweeping executive order aimed at unraveling efforts by President Barack Obama’s administration to combat climate change.
“This is an important moment for EPA,” chief of staff Ryan Jackson wrote. “As the Administrator has mentioned many times, we do not have to choose between environmental protection and economic development.”
Jackson cautioned that there was “limited space” to see Trump sign his order in the EPA’s wood-paneled Map Room. But there was also limited interest from many of the agency’s career employees.
At the EPA, scientists are encountering renewed skepticism of their work, many employees have seen their offices slated for elimination altogether, and regulators are facing the prospect of dismantling environmental rules many of them spent years creating. Trump’s visit to headquarters Tuesday was met with frustration, resignation and varying levels of angst.
“What an insult,” said one longtime employee, who like others spoke on the condition of anonymity for fear of retribution.
“Needless to say, morale is at rock bottom,” said another, who noted that some employees had worn buttons that read “scientific integrity” in quiet protest.
But elsewhere in the building, the president and members of his Cabinet joined in celebrating a shift in policy direction with representatives from several energy industries that had been on the losing end of the previous administration’s policies.
Trump showed up at 2 p.m. as scheduled, surrounded by coal miners and coal executives, as well as Pruitt, Energy Secretary Rick Perry, Interior Secretary Ryan Zinke and Vice President Pence.
“Today, we’re taking a great step in breaking the restraints that have become burdens,” said Perry.
“We’re not going to allow regulations here at the EPA to pick winners and losers,” Pruitt promised.
The president, who devoted much of his remarks to praising coal miners, pipelines and U.S. manufacturing, declared, “We’re ending the theft of American prosperity and rebuilding our beloved country.”
The far-reaching order he unveiled Tuesday instructs federal regulators to rewrite key Obama-era rules curbing U.S. carbon emissions — namely the Clean Power Plan, which was intended to reduce greenhouse gas emissions from the nation’s electric plants. It also seeks to lift a moratorium on federal coal leasing and remove the requirement that federal officials consider the impact of climate change when making decisions.
In sum, it amounts to a wholesale rebuke of Obama’s environmental efforts.
Several of the measures could take years to implement and are unlikely to change broader economic trends that are pushing the nation toward cleaner sources of energy than coal. But the order sent an unmistakable message about the direction in which Trump wants to take the country — toward unfettered oil and gas production, with an apathetic eye to worries over global warming.
Reactions to the new order came swiftly.
The Independent Petroleum Association of America’s president and chief executive, Barry Russell, who was at the event, said in a statement that his group welcomed Trump’s “bold decision to tackle the growing regulatory state and identify rules that harm the economy and threaten American jobs.”
National Rural Electric Cooperative Association chief executive Jim Matheson, who also attended and whose group challenged the Clean Power Plan in federal court, said in an interview that he does not anticipate that many of his members will start building new coal-fired plants. But for those who already have invested heavily in keeping their coal plants operating, he said, “It has given them much greater flexibility to maintain more reasonably priced and affordable power for our consumers.”
Meanwhile, former Obama administration officials expressed outrage.
“President Trump’s executive order to roll back vital climate and clean air protections this afternoon is the most brazen and transparent assault on the health of Americans in my lifetime,” said Heather Zichal, former deputy assistant to the president for energy and climate change.
Lisa P. Jackson, who headed the EPA during Obama’s first term and is now Apple’s vice president of environment, policy and social initiatives, said in a statement that “limiting climate protections threatens the certainty businesses need to continue to innovate.”
And several governors said that they would press ahead with their own plans to cut carbon emissions.
Gov. Jay Inslee (D-Wash.) noted in an interview that he had spent part of Tuesday in Snohomish County, heralding the “biggest battery in the world to integrate solar and wind into the grid,” whose development was underwritten in part by state taxpayers.
And California Gov. Jerry Brown (D) said in an interview that he, like Inslee, was prepared to take the new administration to court over its regulatory rewrite. “Gutting the Clean Power Plan is a colossal mistake and defies science itself,” he said. “Erasing climate change may take place in Donald Trump’s mind, but nowhere else.”
Outside the EPA on Tuesday afternoon, protesters shouted and waved signs, biding their time for a larger protest later in the day outside the White House. Inside, some employees watched the president’s remarks on YouTube, while others went for a walk. In the Map Room, Trump sat at a small table and scribbled his signature on the order.
“Come on, fellas. Basically, you know what this is?” Trump said to the coal miners gathered around him. “You know what it says, right? You’re going back to work.”
https://www.washingtonpost.com/national/health-science/trump-signs-order-at-the-epa-to-dismantle-environmental-protections/2017/03/28/3ec30240-13e2-11e7-ada0-1489b735b3a3_story.html
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Trump Lawyers Ask Court to Halt Climate Rule Case
Mar 29, 2017 | The Hill - E2 Wire
By Timothy Cama
Trump administration attorneys are asking an appeals court to hold off on ruling on whether the Environmental Protection Agency’s (EPA) Clean Power Plan is legal.
In a filing late Tuesday, attorneys notified the court that President Trump had signed an executive order earlier that day asking the EPA to consider repealing the climate change regulation and that EPA Administrator Scott Pruitt had officially started that process.
Given those circumstances, the Court of Appeals for the District of Columbia should put a pause on proceedings until the new regulatory process for potential repeal is complete, they said.
“The Clean Power Plan is under close scrutiny by the EPA, and the prior positions taken by the agency with respect to the rule do not necessarily reflect its ultimate conclusions,” the Justice Department attorneys wrote.
“EPA should be afforded the opportunity to fully review the Clean Power Plan and respond to the president’s direction in a manner that is consistent with the terms of the executive order, the Clean Air Act, and the agency’s inherent authority to reconsider past decisions. Deferral of further judicial proceedings is thus warranted,” they said.
The appeals court is considering a lawsuit filed by a coalition of conservative states, energy companies, business interests and others, who sued to stop the rule in 2015 after the Obama administration finalized it. Pruitt, who was Oklahoma’s attorney general at the time, was one of the leading challengers.
Ten of the court’s justices heard oral arguments in September in the case and could rule any day on whether the limits on carbon dioxide emissions for power plants are legal and constitutional.
But Trump’s Tuesday order effectively flips the government’s position from defending the rule to opposing it.
The court is not obligated to heed the Trump administration’s request. And even though the EPA is nearly certain to repeal the rule, the court could still uphold it.
Additionally, environmental groups, Democratic states and other supporters of the regulation may ask the court to continue its proceedings, with the rule’s supporters acting to defend it.
Trump’s Tuesday order was wide-ranging, targeting not just the Clean Power Plan, but nearly all of Obama’s executive actions and regulations on climate change.
http://thehill.com/policy/energy-environment/326271-trump-lawyers-ask-court-to-halt-climate-rule-case
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The Big Announcement is Over. What Happens Now?
Mar 29, 2017 | E&E Climatewire
By Niina Heikkinen and Evan Lehmann
President Trump never uttered the words "climate change" yesterday as he snuffed out former President Obama's plans to curb greenhouse gas emissions.
Speaking at U.S. EPA headquarters, flanked by coal executives and their employees, Trump said the "energy independence" executive order would usher in a "new era of energy" that would eliminate federal overreach, shower the country with wealth and put miners back to work. The president singled out the Clean Power Plan, Obama's rule to curb emissions from the power sector, as the greatest regulatory threat to coal miners.
"We are going to have clean coal, really clean coal. We are going to cancel job-killing regulations — by the way, regulations not only of this industry but every industry. We are going to have safety, clean water and clean air, but so many [regulations] are unnecessary, and so many are job-killing," Trump said.
"You know what this is?" Trump asked the miners as he prepared to sign the order. "You are going back to work. Ready?"
That neither Trump nor EPA Administrator Scott Pruitt, Vice President Mike Pence, Energy Secretary Rick Perry or Interior Secretary Ryan Zinke, nor any of the two dozen lawmakers or industry leaders in the EPA Map Room mentioned climate change yesterday was not a coincidence. The executive order is the latest and most sweeping step in the administration's unabashed effort to weaken or eliminate federal efforts to study climate science, curb carbon and protect vulnerable parts of the United States from flooding and sea-level rise.
In addition to rolling back the Clean Power Plan, the order targets EPA and Bureau of Land Management regulations on methane emissions from the oil and gas sector. It reopens BLM regulations on hydraulic fracturing, eliminates Obama's Climate Action Plan and cuts down federal calculations of the social cost of greenhouse gas emissions. The Department of Energy, Trump said, will have a role in fostering employment in the energy sector.
"Together, we will create millions of American jobs, also so many energy jobs, and really lead to unbelievable prosperity all throughout our country, and Rick Perry is going to have a lot to do with that," he said.
'People need to see mines reopening'
The order stands to reinforce the idea that Trump is deeply suspicious of climate science, even as his advisers seek to soften his past statements about its being a conspiracy by the Chinese and Democrats.
White House press secretary Sean Spicer was asked yesterday during the White House daily briefing if Trump still believes that climate change is a hoax. Spicer didn't dispute it. Instead, he said the president would talk about "the climate and what he believes" when he signed yesterday's order. That didn't happen.
"He does not believe that, as I mentioned at the outset, that there is a binary choice between job creation, economic growth and caring about the environment," Spicer said. "I think, at the end of the day, where we should be focusing on is making sure that all Americans have clean water, clean air, and that we do what we can to preserve and protect our environment."
The president's focus on coal yesterday harked back to promises he had made for more than a year to reopen coal mines and put workers in hard hats and reflective stripes back to work. The order yesterday began a countdown to making those promises real. Announcing the end of a rule, which miners detest, is one thing. Putting them back to work is another.
Many experts say there's no easy way to resuscitate Appalachian coal towns, which face bigger challenges than government regulations, like plentiful and cheap natural gas. Spicer said yesterday that the administration hasn't estimated how many jobs might be created by rolling back the Clean Power Plan.
Earlier this week, a senior administration official acknowledged that several pressures "conspire" to affect the coal industry, with regulations being just one of them. The president doesn't influence all of them, but he will do his part to make government a better friend to coal, the official said.
The question is whether that's enough. Miners were happy yesterday, but if they continue to feel as if the dice are weighted against them, some of them might begin to see Trump as just another Washington politician.
"I think people need to see mines reopening," said Glen Bolger, a Republican pollster. "There's risk in everything in politics. You can't deliver on everything. But you have to deliver enough things."
States plan to fight
Actually rolling back the Clean Power Plan will likely be a multi-month process, blighted by legal challenges if EPA tries to get rid of the rule without putting in a replacement. That is because the agency is under a legal obligation to act, first because greenhouse gases are an air pollutant, and second because those greenhouse gases endanger public health and welfare, said Steven Silverman, a former EPA attorney under President Obama.
"Leaving nothing in place I don't think is a legal option, so long as the endangerment finding stands," said Silverman.
He noted that EPA has a lot of discretion to weigh cost, feasibility and lead time while writing regulations but would still have to account for facts already compiled in the administrative record that were used to justify the creation of current regulations.
"There would be legal ways to adopt significantly less stringent standards to pass legal muster. I can think of some, but I don't want to tell them," Silverman said.
Though the Trump administration has singled out the Clean Power Plan as a main culprit in killing coal jobs, Silverman pointed out that the Obama administration saw at least the new source standard for power plants as a "lifeline, not an albatross," for the coal industry.
"It's a technology that captures emissions, it can put those CO2 captured emissions to product use, for enhanced oil recovery for example, or safely sequestered. It's a way for that industry to coexist with a world that is trying to cope with climate change," he said.
New York Attorney General Eric Schneiderman (D) said his office would oppose efforts by Trump's Department of Justice to freeze the case currently residing in the U.S. Court of Appeals for the District of Columbia Circuit, as instructed by the executive order.
"We intend to oppose any effort to hold in abeyance the litigation to defend the Clean Power Plan and any effort to roll it back," Schneiderman told reporters yesterday.
Predictable reactions from right and left
In the hours before Trump made his first appearance at the agency, EPA headquarters closed its shades in preparation for the president's arrival, as heightened security patrolled the grounds. Staff mulled the consequences of the administration's recent actions on the agency.
"People are just keeping their doors shut. The president coming here is a deliberate stick in our eye," said one employee, who worked in enforcement of the Clean Water Act but declined to give his name.
"Keep calm and carry on is the mantra," said another EPA staffer. "Hopefully, everything will get straightened out," she added.
Fossil fuel leaders cheered the order.
"Today's action by President Trump calls on his administration to review existing federal agency policies that have held back American energy production, rescinding rules that have limited our economic growth with little benefit," Independent Petroleum Association of America President Barry Russell said in a statement.
The reactions on Capitol Hill, meanwhile, underscored the partisan divisions on climate change. Republicans in energy-rich states celebrated the administration's hands-off approach to fossil fuel development. They represent industries that for years have suggested that Obama's actions symbolize a social prejudice against oil and coal.
"After eight years of radical environmental policies from the White House, we now have a president focused on bringing coal jobs back," said Rep. Evan Jenkins (R-W.Va.).
Democratic argued that Trump's move would only introduce uncertainty into the business environment and would do nothing to create an economic boost. Sen. Sheldon Whitehouse (D-R.I.) predicted that the regulatory rollback would be unlikely to survive court challenge, particularly as Pruitt plans to keep the Obama-era endangerment finding for carbon intact.
"I don't think he has a lot of real running room rather than to delay for a bit and wait for that litigation," said Whitehouse. "They're playing with fire here, and I think they're going to find that they'll be burning their fingers."
In the evening, scores of environmental activists gathered in front of the White House to condemn the executive order. Holding up signs demanding clean air and climate justice, they criticized the administration for rolling back clean energy initiatives that boosted both local economies and health, saying that the order provided businesses with a green light to pollute.
Sen. Ed Markey (D-Mass.), who also attended the rally, encouraged the public to fight Trump and the "Big Oil cartel."
"Today, Donald Trump did not sign an executive order. He signed a declaration of war against a clean energy revolution, against climate change as a science," he said, adding that the order was a symptom of climate denial, rather than a step toward energy security.
"[W]e know what his formula is on climate change: Deny, delay, defund — and it will create a disaster for the entire planet," said Markey.
Laura Anderko, director of Georgetown University's Mid-Atlantic Center for Children's Health and the Environment, said that the Clean Power Plan would have saved 300,000 sick days a year if implemented through 2030, as well as prevented 90,000 asthma attacks in children on an annual basis.
"We need to help the administration understand that clean air means good health," she said.
http://www.eenews.net/climatewire/2017/03/29/stories/1060052259
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Tax Reform an Important Part of Pro-Consumer Energy Policy
Mar 29, 2017 | The Hill - Congress Blog
By Lance Brown
Today, the House Energy and Commerce Subcommittee on Energy will convene to discuss the effects on federal energy taxes on power prices and the families and businesses who pay them. This is a timely topic for lawmakers, as eight years of changes to the energy sector by the Obama administration have already helped to distort the energy marketplace and place upward pressure on the price of electricity. The EPA, emboldened by the president and spurred on by the environmental lobby, ran amok. The regulatory landscape expanded and America’s utilities scrambled to find a path forward that met the demands of both customers and administrative fiat.
Under recent executive leadership, sweeping decisions about the future of American energy didn’t always keep in mind those forced to pay the toll for new regulations. But as members of this energy subcommittee undertake their work today, they have a chance to begin moving the needle away from regulatory overreach and toward the direction of customers. Understanding that the committee’s session focuses on the role of energy taxes as part of a comprehensive tax reform effort, here are some principles we hope they will keep in mind during their meeting.
First, U.S. tax laws should serve to unleash America’s domestic energy potential, not restrain it. As Energy Subcommittee Chairman Fred Upton (R-Mich.) has stated, the tax code is a useful and effective tool for “driving energy policy” by increasing investment in fossil fuels, nuclear energy, renewable power sources, and energy efficiency. Our energy future is brightest and customers are best served when a diverse group of energy sources is at the disposal of utility planners. America’s energy sector doesn't just need an “all of the above” strategy; it needs a “more of the above” focus. More options means greater reliability and lower prices.
Second, U.S. tax laws should be geared toward competitiveness in the global marketplace. Already, federal lawmakers are considering comprehensive tax reform such as the blueprint for change put forward by House Speaker Paul Ryan (R-Wis.) and House Ways and Means Chairman Kevin Brady (R-Texas).
This plan would provide better tax treatment for American companies and ensure that imports and exports are treated equally from a tax perspective. And while slashing corporate tax rates and lowering the tax burden on small businesses is a central part of this bold plan, so too is the tenet that U.S. tax policy shouldn’t play favorites when it comes to energy sources. Energy companies, whether they produce fossil fuels or some other form of energy, deserve access to the same tax deductions and incentives for capital investment. Adhering to this principle will further grow American energy supplies and lower prices for customers on the home front.
While Sen. Al Franken (D-Minn.) and others have attempted to label energy tax deductions by fossil fuel companies as subsidies, this characterization simply lacks basis in fact. Provisions such as Intangible Drilling Costs, the Section 199 Manufacturers’ Deduction, and others, are standard deductions of the kind taken by numerous other industries. They are not direct subsidies of the type showered on the for-profit solar industry in past years. In that light, lawmakers should take caution in how they frame arguments about energy sector tax deductions and resist calls for removing such incentives on the basis that they are something other than what they really are. Treating energy companies differently than their counterparts in other sectors isn’t just unfair; it creates distortions in the marketplace that ultimately hurt customers in the form of reduced supplies and higher prices.
Third, and finally, members of the committee should acknowledge that the key to long-term investment and growth in the nation's oil and gas sector begins with stable and permanent tax laws. In 2015, traditional energy producers such as oil and gas were the second highest investors in America, devoting more than $33 billion to the nation's energy infrastructure. In fact, this sector invested more than $160 billion from 2011 to 2015, creating millions of jobs and helping the American economy claw its way out of recession.
Repealing tax provisions that have buoyed the energy sector will only serve to undermine growth, erect barriers to capital investment, and curtail energy supplies. On the other hand, a set of stable tax rules will further encourage the flow of capital and help customers by stabilizing prices in the long term.
The energy sector is more than a simply a bright spot in the American economy. It is a beacon of light capable of guiding the nation out of economic stagnation toward greater growth. Through smart and informed tax policy, a robust domestic energy sector can provide built-in advantages for American companies vis a vis their international counterparts and help ease the burden on families through lower and more stable prices. Wise energy policy can also move our nation closer toward true energy independence, reducing the need to import energy from the world’s trouble spots.
As the members of the House Energy and Commerce Subcommittee on Energy deliberate today, we encourage them to keep close in mind those who pay for American energy policy. By moving closer toward a tax code that serves American energy customers, they can help protect and strengthen their collective future.
Lance Brown is the Executive Director of the Partnership for Affordable Clean Energy (PACE), a coalition of working people, business owners, environmentalists, and trade organizations who are fighting for fair, responsible energy policies.
http://thehill.com/blogs/congress-blog/energy-environment/326209-tax-reform-an-important-part-of-pro-consumer-energy
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White House Faces First Challenge to Pipeline Approval
Mar 29, 2017 | E&E Energywire
By Ellen M. Gilmer
Environmental and tribal advocates have fired the first shot in court over the Trump administration's recent approval of the Keystone XL pipeline.
The Indigenous Environmental Network and North Coast Rivers Alliance late Monday filed suit in federal court in Montana, challenging the government's review process for the contentious oil project.
The legal attack is the first of likely numerous challenges to the administration's decision last Friday to greenlight Keystone XL. President Obama in 2015 denied the required cross-border permit for the proposal, which would help deliver Canadian oil sands to Gulf Coast refineries.
This week's lawsuit challenges the underlying Obama-era review for the pipeline — also used by the Trump administration — arguing that the State Department's environmental impact statement failed to adequately consider impacts and alternatives, running afoul of the National Environmental Policy Act. The argument is an ambitious one, claiming, among other things, that the EIS was unreasonably narrow by assuming a domestic need for oil.
"Here, the State Department entirely failed to consider the feasible and environmentally beneficial alternatives of adopting aggressive renewable energy and energy efficiency measures to obviate the claimed need for more crude oil," the filing says.
The suit also alleges violations of the Endangered Species Act, Migratory Bird Treaty Act, and Bald Eagle and Golden Eagle Protection Act.
The two groups are seeking a preliminary injunction barring pipeline backer TransCanada Corp. from "taking any action that would result in any change to the physical environment in connection with the Project" until the court considers the claims against the pipeline.
The Indigenous Environmental Network, a coalition of members of various tribes, has long opposed Keystone XL and has been active in organizing against the Dakota Access pipeline in North Dakota. The North Coast Rivers Alliance is an "association of conservation leaders." Both groups submitted comments opposing pipeline approval during the environmental review process.
They are represented by the Billings, Mont.-based firm Patten, Peterman, Bekkedahl & Green PLLC and the Law Offices of Stephan C. Volker, a Berkeley, Calif.-based public interest firm.
Several larger environmental groups, including the Sierra Club, the Natural Resources Defense Council, the Center for Biological Diversity and Bold Alliance, have also vowed to challenge Keystone XL in court (Greenwire, March 24).
http://www.eenews.net/energywire/2017/03/29/stories/1060052254
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LNG Trade Jumps After 4 Flat Years
Mar 29, 2017 | E&E Energywire
By Jenny Mandel
Natural gas exports picked up last year after several years of minimal growth, but the industry continues to adjust its expectations to weak markets and a shift in market power, industry data show.
Global trade in liquefied natural gas (LNG) grew 7.5 percent last year compared with 2015, a marked increase over the roughly 0.5 percent growth seen the previous four years, according to a report from the International Group of Liquefied Natural Gas Importers. The jump is a sign that the brunt of a slowdown linked to weak economic growth in Asia may be in the rearview mirror.
But world LNG markets continue to grapple with a surge in supply that stems from a handful of massive projects in the United States, Australia and elsewhere coming online in just a few years without a match on the demand side.
Industry observers have long said that the uneven supply additions gradually would be soaked up by growth in LNG imports. But the latest industry report suggests an alternative resolution: balancing via curtailed natural gas production. "Surplus capacity could be progressively absorbed by additional imports and/or by shut-ins, both as a consequence of low price levels, resulting in a market rebalancing in the first part of the decade," the group said.
Energy forecasters have projected a range of dates for an LNG market rebalancing. Some assessments, including a recent one by Moody's Investors Service, see supply and demand coming into balance in the early 2020s, while others say it could take a few years longer. The importers group's forecast that markets could be oversupplied "until the mid 2020s" puts it at the later end of that range (Energywire, Feb. 23).
The importers noted that world LNG trade picked up last year but that spot prices reached a seven-year low, held down by the strong supply picture.
A shifting balance of power
As world gas markets have become increasingly interlinked by LNG shipments and the current export glut has weakened sellers' hands, markets for the commodity are seeing a historic shift. The LNG trade long has been dominated by contracts extending 20 years or more and offering limited options for off-takers as conditions changed. Today, there is a growing move toward spot market and short-term contracts.
The importers' group said such short-term trades made up 28 percent of global trade last year for the second year in a row and could go higher over the next few years.
"LNG contracting strategies have grown in importance," the group said, pointing to destination and off-take options and price competitiveness as key negotiation points.
Japan, which alone accounts for about a third of global LNG imports, is looking at a wave of long-term contract roll-offs in the next few years, and buyers there have worked aggressively to try and secure better terms for their replacements. Japanese company JERA Co. Inc. is reported to have signed a memo of understanding with Korea Gas Corp. and China National Offshore Oil Corp. to form a buyer's group with expanded leverage, with India and Taiwan closely watching the alliance.
The clout of emerging economies in the world market is growing. After a few years of low import growth, the Chinese market saw a 37 percent expansion in 2016 over the prior year, while Indian imports jumped by 30 percent, the importers' group data show.
In contrast, Japanese LNG imports shrank slightly for the second year in a row. European imports, which have expanded over the course of the U.S. shale boom as cargoes slated for the United States were redirected to other markets, also shrank last year by a surprising 26 percent, which the importers' group pinned to greater pipeline gas supplies and increased domestic production.
Another surprise for the market in the report: With natural gas prices low in both the Atlantic and Pacific markets, shipping costs have been a major determinant of LNG markets. The first U.S. cargoes from the Lower 48 states were shipped in the last days of 2015, and Asia was widely expected to be the major destination for U.S. cargoes with the completion of a Panama Canal widening project last year. Instead, 58 percent of Gulf of Mexico exports went to Latin America, with Asia accounting for 19 percent and the Middle East taking 14 percent of U.S. shipments.
http://www.eenews.net/energywire/2017/03/29/stories/1060052253
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Florida Bill to Regulate High-Speed Rail Dies in Committee
Mar 29, 2017 | Progressive Railroading
A proposed Florida state law to regulate high-speed rail — which Brightline passenger-rail service officials said targeted their company — died in a legislative committee yesterday.
Dubbed the Florida High-Speed Passenger Rail Safety Act, the legislation was pulled from the Florida House Transportation and Infrastructure Subcommittee yesterday without comment. The committee then adjourned for the remainder of the legislative session, which means the bill will not proceed, according to Florida media reports.
Brightline representatives have said the bill was intended to block their company from building an express passenger-rail service between Miami and Orlando. Now under construction, the line is expected to open for service between West Palm Beach and Fort Lauderdale in July and Fort Lauderdale and Miami in late August. The West Palm Beach and Orlando segment is targeted for launch in 2018.
Introduced by State Sen. Debbie Mayfield (R-Melbourne), the bill called for high-speed rail operators to install safety features such as positive train control (PTC) and fencing along certain areas of the route. The proposed legislation also would require operators to agree to fund signaling and maintaining safety technology at crossings unless contracts with local governments state otherwise.
Earlier this month, the bill was endorsed by the Florida Senate's Committee on Transportation.
Brightline has noted that the federal government already regulates many of the requirements contained in the bill. Company officials also have said that the legislation is targeting one company — theirs — and could threaten Brightline's plans to expand to Orlando.
"The 'Rail Safety' bill … should be viewed for what it is: the latest installment of a strategy of roadblocks designed to delay and drive up the cost of [Brightline] in hopes of breaking the company. Only in this chapter, clever opponents of the project are attempting to deceive legislators into taking a poison pill that will kill the future of passenger rail in Florida," Michael Reininger, an executive with Brightline's parent company, wrote in an op-ed that appeared March 20 in Florida newspapers.
Mayfield denied in news reports that her bill was aimed at stopping Brightline. But Reininger noted in Florida media interviews that longtime opponents of the Brightline project who live in the "Treasure Coast" counties of Martin, Indian River and St. Lucie and are organized under the name Citizens Against Rail Expansion (CARE) are supporters and backers of Mayfield’s bill.
After the bill stalled yesterday, Brightline Vice President of Government Affairs Rusty Roberts issued the following statement:
"The fact that the bill was pulled from the committee agenda today means the overwhelming input from groups such as the Florida Chamber and Florida TaxWatch, elected officials from key cities and newspaper editorial boards is making an impact. We have been saying this bill is not about safety but an attack against private property rights and is targeting our company. Legislators are comprehending these facts, and we are appreciative."
http://www.progressiverailroading.com/high_speed_rail/news/Florida-bill-to-regulate-high-speed-rail-dies-in-committee--51200
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President Shows Disregard to Environment with Executive Actions on Climate Change
Mar 29, 2017 | The Hill - Congress Blog
By Alan Lowenthal
We all knew this was coming since the November election. We hoped that reason would triumph. We even had a modicum of relief when the President, in his address to Congress, said that he wants “clean air and clean water.”
But, a few weeks ago, when the president proposed a draconian 31 percent cut to the Environmental Protection Agency (EPA) budget and the elimination of key climate change programs across the federal government, we knew what was around the corner.
In the end, it was just as bad as any of us imagined.
Tuesday, the president signed an executive order to overturn the Clean Power Plan, undo the moratorium on coal leasing on federal lands, eliminate federal agencies factoring in the impact of climate change in their decision making, and opening up even more public lands like our National Wildlife Refuges to fossil fuel production.
The President of the United States thinks he has tricked America into believing he is concerned about energy independence. Instead, what this executive action has shown, is his utter disregard for our environment and the environment that will be left to future generations.
And this is not just Donald Trump’s view. He is the denier-in-chief. And he has chosen his subordinates well. The president and his top officials have called climate change “a hoax,” a “waste of your money,” and have called for continued debate, review, and analysis on the subject when asked about carbon dioxide’s role in causing climate change.
This administration has chosen willful ignorance in order to avoid science-based action that would build safe, healthy communities in which to raise our families and grow our economy.
This is short-sighted because the longer we wait to act to mitigate the impacts of climate change, the more expensive it will be to reduce greenhouse gas pollution and the less of a chance we will have to keep the world’s warming below a safe threshold.
America has the opportunity to lead the world in making our environment safe and healthy now and into the future. Instead, the president’s actions slow down the progress we’ve been making and put U.S. leadership on climate in question. It only kicks the climate change can further down the road, forcing future generations to suffer and deal with what we have wrought.
With a stroke of his pen, President Trump has pushed the collective head of the U.S. government further into the sand on climate change.
Adding insult to injury, the executive order kills all the tools that help us to clean up carbon pollution—making climate change worse--all while stifling programs that help us prepare for the impacts of climate change we are already seeing all too often. And his order also muzzles government defense scientists who plan for the impacts of climate change, which our military planners have long identified as a national security threat.
I would encourage the president to consider an alternative approach and to live up to our moral responsibility to care for our common home, our families, and our neighbors around the world.
Instead of rejecting climate change policies, we should be enacting policies that encourage the use of local, renewable energy sources.
We should be investing in research and development to bring about the next generation of clean and efficient energy systems.
We should fund assistance programs that help communities here and abroad adapt to the inevitable changes caused by the damage that has already been done to the climate.
And we should exercise the authority of the EPA to write rules that limit emissions from our power sector and push automakers to build cleaner, more efficient cars.
These steps represent true American leadership and leadership like this will save us money and create jobs. But if we delay, the costs will be higher to us and to our children and grandchildren.
By acting to reduce carbon pollution, we will create more opportunity today and a better future for all of us.
I doubt the President will heed my advice, so we must prepare for a long and tough struggle. This will be fought by the cities, by the states, in courts and at the grassroots level. Many of us remember the days of smog alerts and acid rain. We will not allow our country to go back. We are moving forward.
Lowenthal represents California's 47th District. He is a member of the Resources Committee.
http://thehill.com/blogs/congress-blog/energy-environment/326282-presidents-executive-actions-on-climate-change-show
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Trump Climate Move Risks Unraveling Paris Commitments
Mar 29, 2017 | The Hill - E2 Wire
By Devin Henry
President Trump’s climate change order has thrown a wrench into the Paris climate deal.
Trump on Tuesday signed an executive order undoing most of the major climate work Barack Obama pursued as president.
The order didn’t touch the Paris agreement, an international pact on greenhouse gas emissions that Obama pursued aggressively during his second term. But it begins the process of ending the electricity-sector pollution regulation Obama said would help fulfill U.S. commitments, a decision that underlines Trump’s dismissal of the agreement.
There is internal debate in the Trump administration about the importance of staying in the Paris deal. But Tuesday’s order — and other measures Trump has advanced during his presidency — indicates he’s ready to leave it behind, formally or not.
“This is like a runner on a track,” David Waskow, the international climate director at the World Resources Institute, said of the order’s impact on U.S. climate work.
“The runner is going to keep moving forward, but someone is on the edge of the track throwing all sorts of objects in the way.”
Obama’s Environmental Protection Agency (EPA) finalized the Clean Power Plan in 2015. It aims to cut pollution from the electricity sector as a way to help achieve Obama’s ambitious goal in the Paris agreement: a 26 percent to 28 percent reduction in total U.S. greenhouse gas emissions by 2025
Trump’s Tuesday order only mandates a review of the Clean Power Plan. But he and his administration aggressively oppose it, indicating it’s likely to come off the books after the review.
Undoing the regulation would undermine federal efforts to meet Obama’s Paris goal, unraveling the U.S. commitments under the pact.
“Without the Clean Power Plan, it will be impossible to achieve the U.S. [pledge] under the Paris agreement,” Robert Stavins, the director of the Harvard Project on Climate Agreements, said in an email. “It would have been difficult even with the Clean Power Plan.”
Trump’s climate order emboldened critics of the Paris deal.
“I think the U.S. ought to withdraw from the climate agreement in Paris,” Sen. John Barrasso (R-Wyo.) said on Tuesday.
“I think it was a mistake by President Obama, and since he chose not to bring it to the Senate for confirmation, it’s clearly not a treaty, so I’m for withdrawing from it completely.”
Trump’s industry allies, while praising the details of the order itself, said the administration also needs to move quickly to get out of the Paris accord.
“We urge the president to fulfill his campaign promises to remove the U.S. from the Paris agreement,” said former Trump transition official Thomas Pyle, the president of the American Energy Alliance, which receives some fossil fuel funding.
“Failure to do so could risk the remainder of President Trump’s attempts to rein in the regulatory state and undo the harmful climate policies of the previous administration.”
The order garnered criticism from Democrats, greens and officials who worked to forge the deal in 2015.
“The action by the U.S. to undo important domestic carbon reduction regulation, in the face of the enormous momentum building globally toward a low carbon economy, risks putting the country on a back-foot at a time when most Americans are looking to lead,” said Christiana Figueres, the former executive secretary of the United Nation’s climate office.
“This decision will make things harder, not easier, for Americans.”
Nixing the emissions rule is Trump’s latest and clearest sign that he’s ready to leave the Paris deal in the dust, even if he doesn’t formally take the U.S. out of the agreement.
In his budget proposal, Trump proposed ending federal funding for several international climate change accounts, including the Paris deal’s Green Climate Fund. Obama had pledged $3 billion for the program, but he was only able to spend $1 billion on it while in office.
During the campaign, Trump was hostile to the Paris deal, saying he would, at least, renegotiate it and even consider leaving the pact once he became president.
The White House’s rhetoric on the agreement has changed. On Monday night, an administration official said the status of the deal was “still under discussion,” though the official acknowledged Obama’s climate goals under the pact are likely dead.
“We have a different view about how you should address climate policies in the United States,” the official said. “So we’re going to go in a different direction. I can’t get into what ultimately that means from an emissions standpoint. I have no idea.”
There is a dispute among Trump officials about how to address the climate deal.
Some, like Secretary of State Rex Tillerson, have said the U.S. should stay in the climate deal and not lose “our seat at the table.” Others, though, deeply oppose the agreement: EPA Administrator Scott Pruitt last weekend called it a “bad deal” because the United States’ goals are more aggressive than other high-polluting nations.
Republicans say it doesn’t need to be a choice between staying in the Paris deal and dropping out.
Rep. Kevin Cramer (R-N.D.), who called Tuesday “the most significant day yet in the Trump presidency,” is circulating a letter encouraging the administration to stay in the Paris deal, but only if certain conditions are met, including rolling back Obama’s greenhouse gas targets.
Cramer, an energy adviser for Trump during the presidential campaign, said staying in the deal is “probably the direction it’s going” at the White House.
“My preference would still be to get out of it, but I see the value of staying in it,” Cramer said. “I would not call it a loss if we don’t get out of Paris, if we impose more of our will on the accord.”
http://thehill.com/policy/energy-environment/326240-trump-climate-move-risks-unraveling-paris-commitments
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EPA Cites Trump Order in Bid to Halt D.C. Circuit Utility GHG Rule Suits
Mar 29, 2017 | Inside EPA
By Lee Logan
EPA is asking the U.S. Court of Appeals for the District of Columbia Circuit to halt suits over the agency's climate rules for new and existing power plants, saying President Donald Trump's energy executive order (EO) means the agency will overhaul the rules and those changes could significantly alter the outcome of the suits.
The GHG rule for existing sources known as the Clean Power Plan (CPP) is “under close scrutiny by the EPA, and the prior positions taken by the agency with respect to the Rule do not necessarily reflect its ultimate conclusions,” the Department of Justice (DOJ) writes on behalf of the agency in a motion filed late March 28 in the litigation over the existing source performance standards, West Virginia, et al. v. EPA, et al.
DOJ filed a similar motion in litigation over the new source performance standards (NSPS), North Dakota, et al. v. EPA, et al. Asking the court to hold the suit in abeyance until 30 days after the conclusion of the regulatory reviews and any new rulemakings, the motion says, “such abeyance will promote judicial economy by avoiding unnecessary adjudication and will support the integrity of the administrative process.”
The Obama administration issued both rules and aggressively defended them in the two D.C. Circuit cases, with environmentalists and some states intervening to defend the regulations against attacks from industry and other states.
The D.C. Circuit held arguments six months ago in West Virginia, and observers say it could issue a ruling any day, while the court is currently scheduled to hold arguments April 17 in North Dakota.
Sources say one major motivation behind the Trump administration's requests to halt the litigation is to ensure the agency has as much flexibility as possible as it seeks to scrap or substantially weaken the Obama-era GHG rules. One source tracking the rules earlier said that one of the most important things about Trump's recent order is its request that the D.C. Circuit not “put out any type of judicial decision. . . . If it's a positive one [for the rule], it just makes things more difficult” for the administration.
Trump's EO directs EPA to review both the Clean Power Plan and NSPS for either revision or withdrawal, and directed Attorney General (AG) Jeff Sessions to provide notice of the order to any court with jurisdiction over pending litigation related to the rules. The order said that the AG at his discretion could request the court stay or otherwise delay the litigation or “seek other appropriate relief” pending completion of EPA's review of the rules.
Opposition Motions
DOJ's requests confirm earlier statements from environmentalists and states supporting the rules that they will oppose the effort to pause the litigation. In West Virginia, all outside parties supporting the rule -- except for one utility, Next Era Energy -- “oppose the motion and intend to file responses in opposition,” DOJ says.
In North Dakota, environmentalists and states supporting the NSPS will file similar opposition briefs, the department says, adding that utilities that support the new source rule are reviewing the request but reserve the right to file a response in opposition. The utilities also would not object to delaying oral argument by at least 30 days after the D.C. Circuit rules on the abeyance request.
Traditionally, courts grant such requests when a new administration reviews current rules because courts do not want to rule on a regulation that is likely to be changed.
A March 28 analysis from ClearView Energy Partners expects the court to grant the requests “in part because the courts appreciate when agencies are able to narrow the scope of issues judges must consider.” The firm adds that denying such requests could conflict with the Supreme Court's Chevron doctrine, which directs courts to defer to agencies' expertise when interpreting their statutory authority.
However, some sources speculate that the court might decline these requests -- particularly in West Virginia -- because the court heard the litigation en banc and has been preparing its ruling for months.
Also, environmentalists and others say that the pending litigation raises fundamental legal questions that are almost certain to arise again in litigation over Trump's regulatory rollbacks.
'Substantive Questions'
In its request in West Virginia, DOJ says that abeyance is warranted “to avoid compelling the United States to represent the current Administration’s position on the many substantive questions that are the subject of EPA’s nascent review.”
It adds that any D.C. Circuit decision would “almost certainly” be appealed to the Supreme Court, “thereby compelling further briefing on substantive questions prior to EPA’s completion of its review. This could call into question the fairness and integrity of the ongoing administrative process.”
Similarly, DOJ says that abeyance in North Dakota is warranted “to avoid holding oral argument in the midst of the new Administration’s review of the rule at issue in this case. Were the Court to deny this motion and hold oral argument as scheduled, counsel would likely be unable to represent the current Administration’s position on the many substantive questions that are the subject of that nascent review.”
DOJ also argues that groups opposing the requests “face no harm” from pausing the litigation. The existing plant GHG rule, for example, is currently stayed by the high court and its requirements “would not become effective any time soon even were this litigation to proceed and the stay ultimately lifted. Indeed, no carbon dioxide emission reductions are required from sources under the Rule until 2022 at the earliest.”
Each of the abeyance requests cites Trump's executive order. They also cite separate pre-publication Federal Register notices formally announcing a review of the rules.
“EPA is initiating its review of the CPP, including the accompanying legal memorandum, and providing advanced notice of forthcoming rulemaking proceedings consistent with the President's policies. If EPA's review concludes that suspension, revision or rescission of this Rule may be appropriate, EPA's review will be followed by a rulemaking process that will be transparent, follow proper administrative procedures, include appropriate engagement with the public, employ sound science, and be firmly grounded in the law,” the agency says in its notice for the existing plant rule.
It includes similar language in a separate notice for the NSPS, which was issued alongside the CPP but would only affect newly constructed power plants.
https://insideepa.com/daily-news/epa-cites-trump-order-bid-halt-dc-circuit-utility-ghg-rule-suits
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Groups Spar Over Merits of Cross-State Air Pollution Rule as Haze Control
Mar 29, 2017 | Inside EPA
By Stuart Parker
EPA, environmentalists, states and industry in new legal filings are sparring over the merits of the Obama agency's rule allowing participation in the Cross-State Air Pollution Rule (CSAPR) emissions trading program to satisfy separate haze pollution control mandates, a policy that the Trump administration is currently continuing to defend.
The competing claims over whether or not the rule is lawful are detailed in final briefs filed recently in the U.S. Court of Appeals for the District of Columbia Circuit suit Utility Air Regulatory Group (UARG), et al. v. EPA, et al. that consolidates challenges to the rule.
The Obama EPA in its June 7, 2012, rule established that participation in the CSAPR trading program is better than the best available retrofit technology (BART) emissions controls that individual power plants must meet for EPA's separate haze program, which aims to cut utilities' haze-forming emissions. It also disapproved state air quality plans that relied on an earlier trading program, the Bush-era Clean Air Interstate Rule (CAIR), for haze control.
Environmentalists opposed CSAPR and CAIR because they substitute emissions trading for source-specific controls, which allow plants to comply by purchasing credits. Such plants would therefore not cut emissions that obscure visibility in "Class I" national parks and wilderness areas protected by the haze provisions of the Clean Air Act.
In the UARG suit, environmentalists led by the National Parks Conservation Association (NPCA) oppose EPA's "better than BART" rule for CSAPR as offering inadequate haze reduction. Their case is premised in part on the D.C. Circuit's vacatur and remand of emissions caps for several states under CSAPR.
The Obama EPA in 2016 replaced CSAPR with an "updated" version that is aimed at meeting more-recent stricter ozone national ambient air quality standards, which responds to the D.C. Circuit's remand, and that trading rule is now under litigation in the court as well, in a case also styled UARG v. EPA.
Industry groups, meanwhile, say EPA unlawfully disapproved several CAIR-based regional haze state implementation plans (SIPs), which are plans that detail how states intend to comply with the haze program. The D.C. Circuit found fault with CAIR, requiring EPA to replace it with CSAPR on remand.
The Department of Justice (DOJ) in its final brief for EPA filed March 17 reiterates the same defenses it has made earlier in the case about the merits of the "better than BART" rule.
Emissions Caps
On environmentalists' claim that the D.C. Circuit's remand of CSAPR emissions caps invalidates the rule, the agency argues that, "NPCA obviously did not (and could not) raise these claims during the comment period, nor did it subsequently file a petition for reconsideration on these issues, which is a mandatory exhaustion requirement for claims that were not the subject of comments."
Because the group did not comment, NPCA's claim is not properly before the court, DOJ says. DOJ again defends its right to rely on "presumptive BART," rather than case-by-case analysis.
On industry and states' claims, which seek reinstatement of CAIR-based state implementation plans (SIPs), DOJ says, "There is no effective remedy the Court can grant to State/Industry Petitioners. Therefore, their claims are moot and must be dismissed."
CAIR is no longer in effect and the court lacks the authority to order reinstatement of the plans, DOJ argues.
Environmentalists in their final brief again assert that EPA should have evaluated the combined effect of both CSAPR and CAIR in determining the impact of CSAPR versus source-specific BART, a position DOJ says is illogical and unreasonable.
They further insist that EPA cannot short-cut the five-step BART analysis required for individual sources. The air law "does not give EPA discretion to waive that analysis or disregard the statutory factors in the interest of taking cheaper and hastier shortcuts."
In their final brief, states and industry again argue that the simple fact that CAIR would soon terminate when EPA disapproved CAIR-based SIPs is irrelevant, because the agency acknowledges that the replacement trading program was tougher than CAIR. The EPA "premise was faulty because nothing had occurred since 2005, and nothing would or could occur, that would negate or undermine EPA's factual and legal determination that CAIR was 'better than BART.'"
https://insideepa.com/daily-news/groups-spar-over-merits-cross-state-air-pollution-rule-haze-control
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