Preview Newsletter
ACC PM 4/7/2017
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(ACC Mentioned) AHFA Sets Keynote, Agenda for 2017 Regulatory Summit
Apr 7, 2017 | Furniture Today
By Staff
The American Home Furnishings Alliance has lined up Ann Marie Buerkle, acting chair of the U.S. Consumer Product Safety Commission, as keynote for the organization’s 2017 Regulatory Summit, Oct. 25 in Colfax, N.C. -
Pruitt Says EPA Working to Clear New Chemical Review Backlog
Apr 7, 2017 | Politico Pro - Whiteboard
By Alex Guillen
EPA Administrator Scott Pruitt said today that his agency’s chemical safety office is working hard to clear a backlog of chemical reviews that manufacturers and companies must complete before they can sell products that contain new substances. -
EPA’s Plan to Implement Trump’s Proposed Budget Signals Massive Change
Apr 7, 2017 | Lexology
By John N. Hanson, Daniel M. Krainin, and Jacob P. Duginski
President Trump’s recent budget proposal and a more detailed U.S. Environmental Protection Agency (“EPA”) memo regarding its implementation portend a potentially seismic shift in federal environmental priorities and programs. -
To Help Prevent Breast Cancer, Avoid Excessive Estrogen Exposure
Apr 7, 2017 | Environmental Working Group
By Curt Dellavalle
Good news: According to the National Cancer Institute’s Annual Report to the Nation on the Status of Cancer, the overall rate of new cancer diagnoses continues to decline, and the rate of patients who survive at least five years after diagnosis is improving. -
HONEST Act Answers Science’s Call for Transparency - Why is it Getting a Bad Rap?
Apr 7, 2017 | The Hill - Congress Blog
By Joseph Perrone
Last week, the House of Representatives passed the “HONEST Act,” which prohibits low-quality research from influencing the health and environmental policies of U.S. Environmental Protection Agency (EPA). -
Enviros Invoke SCOTUS in Bid to Keep Legal Battle on Track
Apr 7, 2017 | E&E Energywire
By Ellen M. Gilmer
Supporters of the Obama administration's Clean Power Plan say U.S. EPA's recent bid to freeze legal action runs afoul of a Supreme Court directive on the climate rule. -
Supporters Dig in as Foes Push Court to Halt Case
Apr 7, 2017 | E&E Energywire
By Ellen M. Gilmer
Friends and foes of the Obama administration's Clean Power Plan are lining up for the latest legal tug of war over the rule's future. -
Democrats Press Pruitt on Decision to Withdraw Methane ICR
Apr 7, 2017 | Inside EPA
More than a dozen Senate Democrats are pushing EPA Administrator Scott Pruitt to provide the data and analysis supporting his decision to quickly withdraw the agency's information collection request (ICR) seeking data on methane emissions from existing oil and gas operations, and to release the information collected thus far. -
Dems Demand Answers from Pruitt on Oil, Gas Emissions Rule
Apr 7, 2017 | E&E Daily
By Hannah Hess
Senate Democrats yesterday requested U.S. EPA turn over documents pertaining to a controversial decision related to methane emissions from the oil and gas industry, including a list of all meetings and correspondence surrounding the matter. -
Court Orders Release of Most Oil Spill Documents
Apr 7, 2017 | E&E Greenwire
By Ellen M. Gilmer
Dakota Access cannot keep a trove of information about oil spill risks out of the public eye. -
White House Releases 2nd Guidance for Agency Rules
Apr 7, 2017 | E&E Greenwire
By Arianna Skibell
The White House has released a second guidance document to help federal agencies implement President Trump's deregulatory agenda. -
Pruitt Talks Up Partnership with State Regulators
Apr 7, 2017 | E&E Greenwire
By Kevin Bogardus
U.S. EPA Administrator Scott Pruitt spoke to state environmental regulators today, espousing his pitch for "cooperative federalism" as agency chief. -
Former Obama EPA General Counsel Expects Difficulties for Trump EPA
Apr 7, 2017 | Inside EPA
By Dawn Reeves
Avi Garbow, EPA's general counsel during part of the Obama administration, says he expects the Trump administration will face high hurdles as it seeks to undo much of the Obama administration's regulatory accomplishments. -
6th Circuit Appeal Seeks to Expand High Court's CWA 'Jurisdiction' Ruling
Apr 7, 2017 | Inside EPA
By David LaRoss
A federal appeals court is weighing a novel case that if successful could expand a Supreme Court precedent which opened the door to filing suits over federal regulators' Clean Water Act (CWA) jurisdictional determinations (JDs), with the suit aiming to expand the precedent beyond JDs to EPA "objections" to some state-crafted CWA permits. -
Court Upholds Cap-and-Trade Program
Apr 7, 2017 | E&E Climatewire
By Debra Kahn
California's landmark system for curbing greenhouse gases can continue through at least 2020, a state court ruled yesterday.
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(ACC Mentioned) AHFA Sets Keynote, Agenda for 2017 Regulatory Summit
Apr 7, 2017 | Furniture Today
By Staff
The American Home Furnishings Alliance has lined up Ann Marie Buerkle, acting chair of the U.S. Consumer Product Safety Commission, as keynote for the organization’s 2017 Regulatory Summit, Oct. 25 in Colfax, N.C.
In addition, Commissioner Joseph Mohorovic also will participate in the program, addressing the timely topic of evaluating and managing risk in product safety. Both Buerkle and Mohorovic have been at the forefront of product safety issues important to the home furnishings industry. Buerkle is expected to offer a broad update on CPSC activities.
AHFA’s Regulatory Summit is a one-day conference exploring the issues, policies and emerging challenges surrounding regulatory implementation and compliance.
“The 2017 program specifically will address the complexities of current furniture regulations,” said AHFA Vice President of Regulatory Affairs Bill Perdue, “including the tangled web of state versus federal rulemaking, voluntary versus mandatory regulations, and manufacturer vs. retailer responsibility.”
To be held at the Conference Center on the Cameron Campus of Guilford Technical Community College, the all-day program is set for 8 a.m. to 5:30 p.m.
In addition to the CPSC commissioners, presenters and topics for the 2017 Summit include:
Chris Andresen, vice president in the Washington office of Grayling, a global communications firm and AHFA’s government relations partner. He will present an overview of the legislative and regulatory climate in Washington.
Allyson Azar, manager of state affairs and political mobilization for the American Chemistry Council. She will address the unpredictable landscape of state regulation, focusing on the growing patchwork of state efforts to regulate chemical use in consumer products.
Mark Fellin, worldwide regulatory intelligence manager for Amazon, responsible for leading the development, promotion and implementation of regulatory policies for Amazon Direct Imports. He will address compliance and risk management from an e-commerce perspective.
William Guerry, partner in the Washington office of Kelley Drye, chair of the firm’s environmental practice, and a nationally recognized legal expert on Clean Air Act issues. He will review the Trump Administration’s impact on environmental regulations.
Amy Lally, partner in the Los Angeles office of Sidley LLP and AHFA’s go-to expert on all things Prop 65. She will outline details of the new “furniture safe harbor” carved out in the latest revision to Prop 65’s “clear and reasonable warning” rules.
Michael Sullivan, managing partner in Womble Carlyle’s Winston-Salem, N.C., office and an expert on product liability matters. He will cover risk mitigation, specifically with regard to furniture tip-over.
Christine Zanella, compliance manager in the legal department at Wayfair. She will address how the online furniture giant is tackling compliance issues today.
AHFA’s Regulatory Summit is open to all manufacturers, distributors, suppliers and retailers. The event will conclude with a reception for Buerkle and Mohorovic.
Registration is $99 for AHFA members and $299 for non-members and will include a light breakfast and lunch. Details are available at http://www.ahfa.us/events.
http://www.furnituretoday.com/article/541882-ahfa-sets-keynote-agenda-2017-regulatory-summit
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Pruitt Says EPA Working to Clear New Chemical Review Backlog
Apr 7, 2017 | Politico Pro - Whiteboard
By Alex Guillen
EPA Administrator Scott Pruitt said today that his agency’s chemical safety office is working hard to clear a backlog of chemical reviews that manufacturers and companies must complete before they can sell products that contain new substances.
Pruitt said EPA’s backlog had grown to about 1,000 chemicals when he took office in February, but there are now just 500 to 600 chemicals still awaiting review.
“Our chemical office is working very diligently to get those chemicals out and approved as soon as possible, or decisions made,” Pruitt told state regulators in Washington for a meeting of the nonprofit Environmental Council of the States.
The agency traditionally would review hundreds or thousands of chemicals every year, but industry groups say EPA has seen a growing backlog of chemical reviews since Congress last summer reformed the Toxic Substances Control Act.
Before Congress updated TSCA, EPA had just 90 days to review new chemicals, which would be automatically approved unless EPA declared them too risky. Now, the agency can take more time and must make an "affirmative finding" that new chemicals are sufficiently safe before they can move to market.
Pruitt noted that the TSCA reform law included a number of regulatory deadlines this year that “are going to be met.”
“We’re already on task to do that,” he said.
WHAT'S NEXT: EPA by June must finalize a series of implementation regulations under the reformed TSCA, including rules on how risk evaluations will be conducted and prioritized and a new fee structure for the industry.
https://www.politicopro.com/energy/whiteboard
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EPA’s Plan to Implement Trump’s Proposed Budget Signals Massive Change
Apr 7, 2017 | Lexology
By John N. Hanson, Daniel M. Krainin, and Jacob P. Duginski
President Trump’s recent budget proposal and a more detailed U.S. Environmental Protection Agency (“EPA”) memo regarding its implementation portend a potentially seismic shift in federal environmental priorities and programs. The President’s “Budget Blueprint,” which summarizes his request to Congress for fiscal year 2018 appropriations, seeks to cut nearly one-third ($2.6 billion) of EPA’s funding compared with current levels. It would eliminate more than 50 programs, defund the Clean Power Plan, and eliminate 3,200 full-time jobs. EPA has begun preparation to implement Trump’s plan, signaling the dramatic changes that may be seen at the agency should Congress approve a budget substantially similar to the administration’s proposal.
EPA’s Acting Chief Financial Officer, David A. Bloom, laid out the beginnings of EPA’s plan to implement the budget in an internal memorandum dated March 21, 2017. The memorandum contemplates cutting many significant programs entirely. Those slated for elimination include:
numerous categorical grants, totaling almost $500 million, to many cash-strapped states;
regional programs such as the Chesapeake Bay Program and the Great Lakes Restoration Initiative; and
EPA’s Climate Protection and Waste Minimization and Recycling programs, among others.
Trump’s Budget Blueprint calls for the complete defunding of the “Clean Power Plan, international climate change programs, climate change research and partnership programs, and related efforts….” While not eliminated entirely, other efforts may be changed drastically. The Office of Enforcement and Compliance Assurance would see more than one-fifth of its budget vanish, a reduction of about $129 million. In addition, federal funding for the Superfund program would be cut by roughly one-third, or about $330 million, compared to current levels.
Some programs may see increases. For example, EPA’s plan seeks a $14 million increase for chemical safety reviews related to the Toxic Substances Control Act reform legislation. Likewise, the proposal calls for increased funding for drinking water and wastewater infrastructure.
Although the budget is subject to change during the Congressional review process, the President’s proposal and EPA’s proposed implementation of it make clear that the President intends to follow through on his campaign promises to roll back environmental regulation. Among other things, the EPA budget memorandum also highlights the goals of returning EPA to its “core statutory requirements” and bringing the responsibility to fund local environmental initiatives back to the states.
http://www.lexology.com/library/detail.aspx?g=fe53367c-c12a-49f7-8d2e-eafa8d63d419
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To Help Prevent Breast Cancer, Avoid Excessive Estrogen Exposure
Apr 7, 2017 | Environmental Working Group
By Curt Dellavalle
Good news: According to the National Cancer Institute’s Annual Report to the Nation on the Status of Cancer, the overall rate of new cancer diagnoses continues to decline, and the rate of patients who survive at least five years after diagnosis is improving. These trends prove that although far too many people are still afflicted with cancer, cancer prevention strategies work.
But the news isn’t all rosy. Cancer rates in women haven’t declined for several decades and we aren’t making progress in the fight against breast cancer. Each year, almost 250,000 American women are diagnosed with breast cancer, and in recent years that number has slowly risen.
Many people think there’s little they can do to prevent breast cancer because they think it’s all in their genes. But mutations of the two genes that are the most well-known risks, known as BRCA1 and BRCA2 genes, only cause 5 to 10 percent of breast cancers. Looking beyond genes, there is much that can be done to reduce risks.
Hormones drive many cases of breast cancer. Prolonged heavy exposure to the hormone estrogen is a major risk factor. Here are some things that will help you avoid excessive estrogen exposure and substantially lower your risk of breast cancer.
Since body fat plays a major role in estrogen production, maintain a healthy weight through diet and physical activity. EWG’s new Cancer Defense Diet gives advice on what foods to eat to reduce cancer risk.
Drink in moderation, if at all. Alcohol can interfere with the action of estrogen in the body.
Carefully consider hormone replacement therapy and oral contraception options. Talk to your doctor about the risks and benefits of these medications.
Reduce your exposure to endocrine-disrupting chemicals that are found in many foods, packaging items and consumer products.
Endocrine disruptors mess with our hormones. Many of them can mimic or interfere with estrogen in the body, and they have been found to cause mammary tumors in animal studies. EWG has good advice on how to avoid some of the most common endocrine disruptors. If you want to learn more, we took a deeper dive into the subject of endocrine disruptors.
If you’re a survivor of breast cancer or another type of cancer, or are worried about cancer risks, the Anticancer Lifestyle Program offers some insights on changes you can make to help reduce the risk of cancer recurrence or development.
http://www.ewg.org/cancer/2017/04/help-prevent-breast-cancer-avoid-excessive-estrogen-exposure
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HONEST Act Answers Science’s Call for Transparency - Why is it Getting a Bad Rap?
Apr 7, 2017 | The Hill - Congress Blog
By Joseph Perrone
Last week, the House of Representatives passed the “HONEST Act,” which prohibits low-quality research from influencing the health and environmental policies of U.S. Environmental Protection Agency (EPA). By most measures of recent media coverage, you would think the scientific community stands monolithically against it.
It’s an odd position, considering the bill requires the EPA to employ only “the best available science” when informing future regulatory actions. Eligible studies would be limited to those with publicly available data published in a manner “sufficient for independent analysis and substantial reproduction of research results.” The bill improves upon earlier versions by exempting personally identifiable information and trade secrets from the transparency requirement.
At its most fundamental level, the HONEST Act aims to address the “reproducibility crisis” currently plaguing professional research.
Reproducibility, or the ability to duplicate an experiment and achieve similar results, lends validity to the scientific process. To paraphrase science reporter Trevor Butterworth, we can be certain our cars will start every morning because the laws of internal combustion are unchanging observations of the natural world.
By current estimates, somewhere between 65 and 90 percent of academic literature does not meet this standard. And some argue that the science underpinning EPA policy is so invalid, the agency’s car no longer starts
The HONEST Act echoes the scientific community’s call for open access. The most prestigious academic journals lock research findings behind expensive paywalls, and virtually none publish the accompanying raw data. The current climate makes it exceedingly difficult for one laboratory to confirm or disprove the findings of another.
To make matters worse, many people may be surprised to find that the EPA doesn’t own, nor does it even have access to, much of the data justifying its most impactful regulations. The trouble stems largely from EPA research grants, which don’t currently require researchers to release the totality their findings to the federal agency.
EPA staff admitted to their meager access to information after being unable to produce raw air pollution data requested under a 2013 Congressional subpoena. Part of the data in question belonged to Harvard University, where researchers tied air pollution to deaths in six U.S. cities. Since its publication, the study has supported upwards of $65 billion in regulatory oversight.
That this particular data is “held solely by… outside research institutions” and never scrutinized by their funding agencies is troubling, to say the least. Policy shouldn’t be based on secret data, especially as professional science wages a very public war against unreliable studies.
The Harvard study wasn’t an anomaly. In the past 5 years, the EPA awarded more than 750 research grants to advance our knowledge of subjects, including air and water quality, climate change, and chemical safety. If none of the resulting studies can be validated, our foundation of knowledge is a lot less stable than we think.
The HONEST Act’s critics argue that the EPA won’t be able to issue any new regulations under the bill’s strict standards. The assertion would be laughable, if not for the disturbing implication that the EPA can only function when it uses sub-par data.
In reality, “reproducibility” does not mean staging a second oil spill to corroborate the impact of Deepwater Horizon. But it does mean collecting a robust and extensive library of data, and allowing other scientists to gauge how strong of a correlation that data may have with their own. Grant guidelines could be modified to ensure open access by EPA staff themselves, and independent researchers. Faulty methods and human error deserve to be uncovered.
Consider the following hypothetical: A handful of studies tie “Chemical X” to asthma, so the EPA swiftly bans it from production. Without data transparency, we can’t know whether researchers evaluated all possible variables – perhaps “Chemical Y” was the true culprit. While bureaucrats pat themselves on the back for shutting down American industry and the jobs dependent on it, the health burden of “Chemical Y” persists.
As the HONEST Act advances through the Senate, it is imperative that our elected officials continue pushing the EPA to uphold a higher standard. Our businesses, our health, and our environment demand it.
Dr. Joseph Perrone is the chief science officer at the Center for Accountability in Science.
http://thehill.com/blogs/congress-blog/politics/327833-honest-act-answers-sciences-call-for-transparency-why-is-it
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Enviros Invoke SCOTUS in Bid to Keep Legal Battle on Track
Apr 7, 2017 | E&E Energywire
By Ellen M. Gilmer
Supporters of the Obama administration's Clean Power Plan say U.S. EPA's recent bid to freeze legal action runs afoul of a Supreme Court directive on the climate rule.
In filings submitted Wednesday to the U.S. Court of Appeals for the District of Columbia Circuit, state and environmental lawyers ran through their go-to arguments against pausing the case, including claims that live legal issues remain and that the public will suffer more the longer the carbon-slashing rule is sidelined.
But the recent filings also framed the argument in a new way, suggesting that a D.C. Circuit decision to put the monumental legal battle on ice would actually flout the terms of a Supreme Court order pausing the Clean Power Plan last year (Energywire, April 6).
"The requested abeyance perverts the purpose of the Supreme Court's stay, which imposed only a temporary halt in the enforcement of the Clean Power Plan pending judicial review," a coalition of environmental and public health groups told the D.C. Circuit this week. "The Supreme Court explicitly contemplated that the stay would last only until this Court's decision on the merits of the Rule and an opportunity for Supreme Court review."
The groups led with that argument, calling it one of several "fatal defects" of EPA's attempt to pause the case. Their filing notes that Clean Power Plan challengers asked the Supreme Court to issue the stay under a provision of the Administrative Procedure Act that authorizes courts to pause regulations "pending judicial review."
"What EPA asks for here has nothing to do with a judicial remedy, making judicial review effective, or with judicial review of the Clean Power Plan at all," the groups argue. "Instead, EPA seeks to halt judicial review, while at the same time benefitting from the Supreme Court's stay 'pending ... review.'"
Environmental lawyer Sean Donahue, who is representing the groups, expanded on the position yesterday, noting that the five Supreme Court justices who voted in February 2016 to stay the rule could not have contemplated such a drawn-out courtroom battle.
"I think what the Supreme Court expected was what was before them, which was the D.C. Circuit poised to review the case ... on an expedited basis," he said. "I'm sure what they envisioned was expeditious D.C. Circuit review of the claims that were presented to them, and they said, 'Well, let's hold off. We'll block the rule temporarily while this goes forward.'"
A brief from states and cities that support the Clean Power Plan echoed that sentiment, noting that "the stay expressly contemplates a ruling from this Court on the petitions for review."
Traction in court?
Some court watchers see potential obstacles with that argument.
Dorsey & Whitney LLP attorney Jim Rubin, formerly of the Justice Department, noted that "it is difficult to presume what [the Supreme Court's] views might be in this scenario" because, at the time, the court had no indication that EPA would ultimately back away from the Clean Power Plan.
"It is certainly an interesting argument that might have some traction if the court were interested in continuing deliberation, but it still may be an uphill battle to convince the court to render what may be considered an advisory opinion," he said.
ClearView Energy Partners analyst Christi Tezak argued that the Supreme Court's order works against rule supporters more than it works for them because the stay raises questions about the validity of the rule.
"One of the requirements to get a stay (including at the Supreme Court) is a reasonable likelihood of prevailing on the merits," she wrote in an email. "The challenges to the rule include direct questioning of the statutory authority upon which the rule is based — so we aren't sure that argument is either accurate or persuasive."
But other legal experts say the argument could be persuasive. Case Western Reserve University law professor Jonathan Adler said the contention that freezing the case would run afoul of the Supreme Court's order was "perhaps a little bit" of a stretch, "but there's a reasonable argument that the court should not grant an abeyance unless and until it has a clearer indication of what the EPA is seeking to do with regard to the Clean Power Plan."
Pat Parenteau, an environmental law professor at Vermont Law School, similarly noted that the groups' position may be "a little bit of an overstatement," but nevertheless has some legs in the courtroom.
"The D.C. Circuit might view it the way that the intervenors are arguing, which is, 'We've actually been told by the Supreme Court to do this, and we're going to do it,'" he said.
President Trump last week directed EPA to reconsider the climate rule. EPA has announced plans to review the rule but has not yet begun a formal rulemaking process.
http://www.eenews.net/energywire/2017/04/07/stories/1060052761
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Supporters Dig in as Foes Push Court to Halt Case
Apr 7, 2017 | E&E Energywire
By Ellen M. Gilmer
Friends and foes of the Obama administration's Clean Power Plan are lining up for the latest legal tug of war over the rule's future.
In a flurry of court filings yesterday, litigants from both sides made their case for whether judges should halt the sprawling legal battle in light of the Trump administration's recent decision to rethink the climate rule.
The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the case last September and was expected to issue an opinion any day. Justice Department lawyers last week asked the court to instead pause the case while U.S. EPA reconsiders the rule (Energywire, March 29).
A large coalition of states, business groups, electric utilities and others endorsed the Trump administration's position yesterday. In a legal filing, the Clean Power Plan opponents argued that the court would risk issuing an irrelevant opinion by weighing in on a regulation that may be rescinded.
"Holding petitions for review in abeyance is the Court's usual response when, as here, the agency has indicated that it is undertaking a review of the challenged regulation, especially in the context of a turnover of presidential administrations," the filing said.
"That policy has special force when pending agency action could render a challenge moot: Here, there is a real risk that a decision by this Court on the legality of the existing Rule will amount to a mere advisory opinion because the Rule may well be repealed or substantially altered in the near future," the challengers added.
Supporters of the rule question just how near that future may be. They've urged the court to move forward with the case, arguing that EPA's reconsideration of the rule could drag on for years, allowing the agency to effectively scrap the regulation in the meantime without public process or judicial review.
"EPA may not misappropriate principles of judicial review to circumvent the administrative procedure for repealing or revising a duly promulgated rule," lawyers for the trade group Advanced Energy Economy told the court yesterday.
The Supreme Court in February 2016 agreed to stay the Clean Power Plan while the D.C. Circuit litigation played out and until the issue reached the high court again.
Opponents of the rule say the Supreme Court stay strengthens their argument for putting the case on hold. They say supporters of the regulation have nothing to gain from a D.C. Circuit opinion because the stay will remain in effect until the Supreme Court takes action.
"The case for abeyance is even stronger because ... the existing regulation has been stayed by the Supreme Court and thus cannot take immediate effect even if upheld by the Court," the rule challengers argued. "There is thus no possibility of harm to other parties or the public interest from a delay in this Court's consideration of the case while EPA revisits the Rule."
Proponents of the Clean Power Plan pushed back in their own legal filings this week. A group of power companies that support the rule argued that freezing the case now would squander the extensive resources the court has already spent on it.
Plus, they say, it's "entirely possible" EPA will recognize existing trends in the power sector and ultimately opt to keep the rule in place — making it most efficient for the court to answer related legal questions now. The groups point out that when the D.C. Circuit paused a case over ozone standards in 2008 while EPA reconsidered the measures, the agency two years later decided to stick with the original standards.
"If that were to happen, the issues currently before the Court would then very likely need to be litigated all over again and the substantial amount of time and resources already put into considering these issues by both the en banc panel and the parties would be forsaken," the power companies told the court.
Renewable energy industry groups weighed in yesterday, too, arguing that sidelining the case would exacerbate policy uncertainty for project financing and grid planning.
Environmental and public health groups and more than a dozen states and cities submitted similar arguments earlier this week (Energywire, April 6). They also say freezing the litigation now would flout the terms of the Supreme Court stay (see related story).
http://www.eenews.net/energywire/2017/04/07/stories/1060052779
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Democrats Press Pruitt on Decision to Withdraw Methane ICR
Apr 7, 2017 | Inside EPA
More than a dozen Senate Democrats are pushing EPA Administrator Scott Pruitt to provide the data and analysis supporting his decision to quickly withdraw the agency's information collection request (ICR) seeking data on methane emissions from existing oil and gas operations, and to release the information collected thus far.
“During your confirmation process, you said you would examine the ICR currently underway and review the submitted data before making any decisions on how to move forward. Is it correct to infer from the withdrawal of the ICR that you have concluded that any data that had been, or would have been, submitted is irrelevant, and that new methane standards for existing sources are not necessary?” reads the April 6 letter, led by Sens. Tom Carper (D-DE), Sheldon Whitehouse (D-RI) and Brian Schatz (D-HI) and signed by 14 other Democrats.
The Democrats' letter is the second from administration critics in recent days raising concerns with the administrator's action. Officials from eight states earlier this week hinted they may take legal action over Pruitt's decision, charging he had not explained how EPA will “fulfill its legal obligation” to limit the sector's emissions of the potent greenhouse gas.
Pruitt on March 2 withdrew the ICR, an effort that would have formed the basis for a rule limiting emissions of the potent greenhouse gas from existing sources, just one day after he received a letter from several Republican state attorneys general and governors urging him to do so.
The GOP state officials' letter called the data request “harassment” and said the states were outright opposed to any potential methane air rule for existing oil and gas operations.
But Senate Democrats in their letter press Pruitt to detail which statements in the GOP officials' letter he found “persuasive” enough to influence his decision to withdraw the ICR. They also ask Pruitt to provide a list of “all meetings and correspondence you had on the subject of the ICR prior to March 2, and include any information concerning any communications with any of the signatories of the March 1 letter you may have had.”
The GOP officials' letter was led by Texas Attorney General Ken Paxton (R), who met with Pruitt on March 1, the same day the state's letter was sent, though it is not clear the two officials discussed the ICR during their meeting. “Good to meet with @TXAG today! We discussed restoring states' rights & working together to protect our water, air, & natural resources,” Pruitt said in a tweet about the meeting.
The Senate Democrats also question Pruitt on whether he heard any input from states that support the ICR before making his decision to cancel the request.
And they ask whether Pruitt's withdrawal of the ICR means he does not believe EPA has a duty to regulate methane emissions from existing sources. The Obama EPA promulgated methane standards under section 111(b) of the Clean Air Act for new oil and gas sources, triggering the legal obligation for the agency to ultimately regulate existing sources under section 111(d).
“Is it now EPA's position that it has no obligation under section 111(d) of the CAA to issue emissions guidelines for methane emissions from existing sources in the oil and gas sector subject to the NSPS promulgated in May 2016? If so, please provide copies of all scientific or legal analysis on which you based your decision,” the senators write.
EPA, under Pruitt's directive, launched a review of the methane NSPS April 4, pursuant with the recent energy executive order from President Donald Trump calling for the review and “if appropriate” rescission or revision of that rule and several other Obama-era climate regulations.
The senators in their letter question whether Pruitt will fulfill his duty to enforce those new source standards. “The decision to withdraw the ICR causes us to doubt your commitment to adequately enforcing methane emissions standards for new, reconstructed, and modified equipment that are already in place,” they write.
They also ask Pruitt to release the information EPA had collected through the ICR process thus far, requesting a response by April 17.
https://insideepa.com/the-daily-feed
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Dems Demand Answers from Pruitt on Oil, Gas Emissions Rule
Apr 7, 2017 | E&E Daily
By Hannah Hess
Senate Democrats yesterday requested U.S. EPA turn over documents pertaining to a controversial decision related to methane emissions from the oil and gas industry, including a list of all meetings and correspondence surrounding the matter.
A letter led by Sen. Tom Carper (D-Del.), ranking member on the Environment and Public Works Committee, requests Administrator Scott Pruitt disclose how much contact he had with state attorneys general or governors who may have supported efforts to regulate emissions.
On March 2, Pruitt complied with a request from GOP leaders in oil-and-gas-producing states to scrap an Obama-era request for industry information about reducing greenhouse gas emissions (Climatewire, March 3).
The agency last month withdrew its formal survey after industry and state officials complained that the information collection request was time-consuming and expensive.
Carper, who led the effort along with Sens. Brian Schatz (D-Hawaii) and Sheldon Whitehouse (D-R.I.), also asked EPA to turn over all data submitted to the agency by the industry before the request was withdrawn.
Attorneys for two green groups, the Environmental Defense Fund and Natural Resources Defense Council, have filed similar requests with EPA under the Freedom of Information Act (E&E News PM, March 8).
The senators also noted that EPA is legally required under the Clean Air Act to control oil- and gas-sector methane emissions from both new and existing sources. They ask if EPA has "shifted its position" about that law.
"If so, please provide copies of all scientific or legal analysis on which you based your decision," the letter states.
The senators asked Pruitt to respond by April 17.
Democratic attorneys general from eight states and the District of Columbia wrote to EPA earlier this week, hinting at a legal battle over methane (E&E Daily, April 4).
http://www.eenews.net/eedaily/2017/04/07/stories/1060052767
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Court Orders Release of Most Oil Spill Documents
Apr 7, 2017 | E&E Greenwire
By Ellen M. Gilmer
Dakota Access cannot keep a trove of information about oil spill risks out of the public eye.
A federal court today rejected most of the pipeline company's arguments that releasing certain information about spill-response plans would give terrorists or activists a road map for damaging the recently completed project.
"Dakota Access offers very little in the way of specific facts to support its argument that terrorists or other individuals with malicious intent might use this information to craft a plan to harm the pipeline in a way that causes the greatest damage," Judge James Boasberg of the U.S. District Court for the District of Columbia wrote.
Boasberg ordered the full public release of six geographic spill-response plans and a spill prevention and response plan prepared by a company contractor. But he granted Dakota Access' request to redact portions of five "spill model discussion" documents.
The 11 documents are part of the Army Corps of Engineers' administrative record in the ongoing legal battle over the oil pipeline. Dakota Access lawyers in February asked the court to keep parts of the record under wraps, citing security concerns. The documents were made available to lawyers in the case but have not been released publicly.
The Standing Rock Sioux Tribe has pushed hard for the full release of the documents. Earthjustice lawyers representing the tribe say the information "would greatly assist other agencies, the public and the tribes in understanding the basis for the corps' conclusion that the risks and impacts of oil spills were so insignificant that no [environmental impact statement] was necessary."
The Standing Rock and Cheyenne River Sioux tribes say they were not aware of the documents until late last year, when the Army Corps submitted its administrative record to the court. The tribes say the documents help illustrate potentially uneven reviews of the pipeline's Lake Oahe crossing just north of the Standing Rock Indian Reservation as compared with an earlier proposed Bismarck, N.D.-area crossing.
Dakota Access has disputed tribal lawyers' characterization and argued that the company merely wants to keep the information out of the hands of would-be criminals.
Fatal to Dakota Access' request was a Transportation Security Administration determination that no part of the documents meets the agency's definition of "Sensitive Security Information." The court also rejected the company's argument that the documents include critical infrastructure information that should be protected from public disclosure.
Boasberg agreed, however, that certain information in the five spill model documents qualified for redaction, thanks in part to recommendations from a Pipeline and Hazardous Materials Safety Administration official. Pipeline maps, detection and shutdown timelines, "scores" of oil spill risks, and other technical information will remain redacted.
Though pipeline construction is complete, the tribes have several environmental and treaty claims pending before the district court.
http://www.eenews.net/greenwire/2017/04/07/stories/1060052810
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White House Releases 2nd Guidance for Agency Rules
Apr 7, 2017 | E&E Greenwire
By Arianna Skibell
The White House has released a second guidance document to help federal agencies implement President Trump's deregulatory agenda.
Despite the new reference in the guidance to preserving the benefits that regulations provide to society, some experts remain skeptical and wary.
Trump's Jan. 30 order requires agencies to toss out two rules for every new one. It also establishes a regulatory budget, which allows the president to set a fiscal cap on rules each year (Greenwire, Jan. 30).
The new guidance, issued following a public comment period, emphasizes that President Clinton's Executive Order 12866, which laid out broad principles for federal regulations, remains the primary governing order regarding regulatory matters.
"Accordingly, among other requirements, except where prohibited by law, agencies must continue to assess and consider both the benefits and costs of regulatory actions, including deregulatory actions, when making regulatory decisions, and issue regulations only upon a reasoned determination that benefits justify costs," Dominic Mancini, acting administrator of the Office of Information and Regulatory Affairs (OIRA), wrote in the document.
The executive order has faced backlash from environmental groups and Democratic lawmakers for not stressing the importance of the benefits that regulations provide, such as clean air and water and a safe working environment.
Earlier this year, Public Citizen, along with the Natural Resources Defense Council, sued Trump for his executive order, saying it would erode public health.
To follow the "one in, two out" mandate, agencies will be forced to repeal rules needed to protect health, safety and the environment, the lawsuit argues. Vehicle safety, occupational health, air pollution and endangered species could all be affected (Greenwire, Feb. 8).
Marcus Peacock, temporary senior adviser at the Office of Management and Budget, emphasized regulatory benefits this week at forum in Washington, D.C., hosted by Resources for the Future (Greenwire, April 5).
"I continue to be perplexed by this disconnect," said Peacock, who served as U.S. EPA deputy administrator under President George W. Bush. "Maximizing net benefits is still the gold standard."
Cary Coglianese, chairman of the Administrative Conference of the United States' Committee on Rulemaking, said it's not so simple.
OMB's initial interim guidance clarified that Trump's "one in, two out" order applies only to "significant" rules.
Significant rules — as defined by Executive Order 12866 — are those that cost the economy more than $100 million a year or ones that OIRA determines raise novel legal or policy issues.
For example, say an agency wanted to propose a new rule that would deliver $200 million in benefits and would cost $100 million, Coglianese said. Because the rule is economically significant, it would require at least two rules to offset its cost under the new executive order.
If an agency finds four rules to toss, each imposing $25 million in costs, then the new rule is completely offset.
However, because those $25 million rules are not economically significant, they would not have been required to undergo OIRA analysis, and therefore people would not know the exact net benefits they provide, he said.
Perhaps each $25 million rule provides $75 million in benefits, totaling $300 million. This would mean an agency would be unknowingly tossing out $300 million in benefits to implement a new rule that provides $200 million in benefits, Coglianese noted.
"If they're giving you credit for things that never got analysis, we won't know at the end of the day if we're losing [benefits]," he said. "You could end up with a loss of overall public welfare."
Another concern has centered around laws that prohibit the evaluation of costs in rulemaking.
In the 2001 case Whitman v. American Trucking Associations Inc., the Supreme Court barred EPA from considering compliance costs in setting standards for ozone and other pollutants under the Clean Air Act.
The new guidance specifies that the executive order only applies to the extent permitted by law. If a law prohibits consideration of cost, the order does not change the agency's obligation under the statue, Mancini wrote.
"However, agencies will generally be required to offset the costs of such regulatory actions through other deregulatory actions taken pursuant to statutes that do not prohibit consideration of costs," he wrote.
This means that agencies would still be required to create a cost figure for a regulatory action under the Clean Air Act, for example.
"The updated guidance does nothing to cure the profound legal issues that are detailed in Public Citizen's lawsuit against the executive order," said Amit Narang, regulatory policy advocate for Public Citizen's Congress Watch.
The complaint states that the executive order exceeds Trump's authority under the Constitution. It also claims that agencies cannot comply with the order without breaking the laws under which they operate or violating the Administrative Procedure Act.
Still, agencies are taking initial steps to enforce Trump's order. EPA Administrator Scott Pruitt has put in place a regulatory task force, as mandated by a separate executive order, to begin looking for arcane or outdated rules that could be tossed (Greenwire, April 4).
http://www.eenews.net/greenwire/2017/04/07/stories/1060052816
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Pruitt Talks Up Partnership with State Regulators
Apr 7, 2017 | E&E Greenwire
By Kevin Bogardus
U.S. EPA Administrator Scott Pruitt spoke to state environmental regulators today, espousing his pitch for "cooperative federalism" as agency chief.
In a speech at the Environmental Council of the States' spring meeting in Washington, Pruitt said he aims to work with state agencies on cutting back pollution as well as rebuilding the country's water infrastructure.
The administrator laid out three principles for what he has planned for EPA, including adhering to the "rule of law" and improving the rulemaking process at the agency. He also looked to appeal to state environmental agency leaders by saying he valued the partnership between EPA and the states.
"Beyond rule of law, beyond process, is something that's very near and dear to your heart, and that's federalism. That's cooperative federalism. Partnership," Pruitt said.
Pruitt noted he already has met with several state regulators as well as governors to build up this relationship.
"Those agencies care about the water that they drink and the air that they breathe. They care about the land in those respective states," Pruitt said. "There is going to be an element of partnership and confidence of us working together."
Pruitt said he wants to move forward on cleaning up toxic Superfund sites across the country. Also, he wants to combat air pollution by bringing more states in line with EPA air quality standards. The agency chief also noted President Trump's push for an infrastructure package and that spending will be doled out to the states in order to improve water infrastructure.
"I really am encouraged that this year, an infrastructure package will pass, and a portion of it will be dedicated to water infrastructure," Pruitt said.
Pruitt is playing a part in the Trump administration's infrastructure push and met with the president earlier this week. In a question-and-answer session after his speech, Pruitt said EPA is working on streamlining the permitting process to get projects out the door and said Trump wants to move quickly on spending.
"[Trump] actually talked about 120 days being the time limit that we want to actually deploy this infrastructure spending. That's very aggressive, clearly," Pruitt said.
Now, more than two months since his Senate confirmation, Pruitt has had to deal with environmental groups pushing back on moves to slow and stop some EPA rules, as well as complaints from some conservatives that he hasn't moved quickly enough on their concerns, including overturning EPA's 2009 endangerment finding against carbon dioxide.
Even during his speech today, he was interrupted twice by protesters who were led out of the room. J.P. Freire, an EPA spokesman, said they were "desperate activists" trying to hijack the event while Pruitt discussed "ways to work with the states toward real solutions that would help grow jobs and protect the environment."
One obstacle for Pruitt's effort to partner with the states is Trump's proposed budget for EPA, slashing the agency's funds by 31 percent, or $2.6 billion. Many grant programs used by state agencies would be cut or even eliminated under the proposal (Greenwire, April 4).
John Linc Stine, commissioner of the Minnesota Pollution Control Agency as well as ECOS's president, told E&E News that it is still early in the budget process. He said that state agencies are talking with Capitol Hill as well as EPA on how to boost funding.
"The first proposed budget leaves a huge gap in terms of state and tribal funding," Stine said. "That's a significant hardship for states to fill that gap."
http://www.eenews.net/greenwire/2017/04/07/stories/1060052820
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Former Obama EPA General Counsel Expects Difficulties for Trump EPA
Apr 7, 2017 | Inside EPA
By Dawn Reeves
Avi Garbow, EPA's general counsel during part of the Obama administration, says he expects the Trump administration will face high hurdles as it seeks to undo much of the Obama administration's regulatory accomplishments.
Speaking to Inside EPA March 15 in his new role as an attorney with Gibson, Dunn & Crutcher, Garbow believes that it will be difficult for the Trump EPA to execute the regulatory rollbacks it intends, especially for the Clean Power Plan (CPP) power plant greenhouse gas rule and the Clean Water Act jurisdiction rule, processes EPA is beginning under the terms of two recent executive orders.
Both the CPP and the Waters of the United States (WOTUS) rule had “historic amounts of public engagement, of reaching out to stakeholders, and what this translates to is an amassing of technical, scientific information all of which informs legal theories that went into the final rulemakings. So when you think about the degree to which the agency compiled an extensive scientific record to ultimately defend the legality of these rules, that's what any recision or review is going to need to contend with,” Garbow says.
He adds that EPA during the Obama administration has “an incredibly strong record in court” of successfully defending its regulations, though litigation over the CPP and WOTUS remains ongoing.
“I say this in part because when you are trying to reverse what you have already done, one of the threshold questions has been: has the agency in the past been arbitrary or capricious? Did it unlawfully [move] in a direction that was not lawfully justified by the record? That is a very difficult standard to meet in court, and recently the agency has been quite successful defending its regulations.”
Garbow points to a performance review of Clean Air Act cases in the U.S. Court of Appeals for the District of Columbia Circuit, which found that the agency had won the vast majority of cases it argued before the court.
The review was intended to provide “a barometer of whether or not the agency had followed the law,” he says.
“This legal performance review found that in the last two years of the Obama administration, the agency prevailed in approximately 90 percent of the cases. When they expanded that to look at six or seven years of the Obama administration, [it] found that the agency prevailed in over 80 percent of the cases. So [EPA has had] an extraordinarily strong record. [And] when you've got new leadership that comes in and wants to reassess or pull back . . . prior rules based on the assumption that the agency has somehow either not followed the law or not held sway to the administrative record, there is a track record that the new leadership must overcome.”
However, Garbow adds that does not mean the new political leadership is not within its rights to reassess rules, “but it will have a high bar, given . . . the administrative record that supports these regulations.”
WOTUS Rollback
On the WOTUS rollback in particular, Garbow says that while the Trump EPA may consider whether it wants to use a different judicial test to determine connectivity to navigable waters, as suggested by the Trump executive order on the matter, “there still remains substantial evidence in the record dealing with connectivity, the connection between waters and streams and tributaries to what are called traditionally navigable waters.
In particular, the administration is seeking to rewrite the rule using the relatively narrower test for determining jurisdiction outlined by Justice Antonin Scalia in Rapanos v. United States, which holds that waters are jurisdictional when they have “continuous surface connection” to navigable waters.
By contrast, the Obama and Bush administration generally agreed to use the broader test, offered by Justice Anthony Kennedy, which held that waters are jurisdictional when there is a “significant nexus” to navigable waters.
In one sign of how quickly the Trump administration is moving on its approach, top officials are said to be considering slowing or ending existing enforcement cases that use the Kennedy test, defying long-running agency guidance and legal precedent even before EPA writes a new rule.
But the administration is already facing hurdles in its plan. Earlier this week, the Supreme Court rejected the Justice Department's (DOJ) request to stay a suit over the correct venue for legal challenges to the rule, opening the door to a ruling that could see the Obama-era rule take effect before the Trump administration can complete its rewrite.
Garbow expects similar if not greater legal hurdles for the CPP rollback. “You have a regulation that was signed after the most extensive engagement process ever run by the U.S. EPA, in excess of 4 million comments from the public and work with literally all 50 states throughout the process.”
The final rule was supported by a substantial number of industry groups and a number of states.
“Anything that the new administration wants to do, whether it is a reversal, a different outcome, a recision if you will, has to be done using the tools of the Administrative Procedure Act. And that is going to again require that final agency action occurs only after a proposal is put out, public comment is had, the agency considers and responds to it, and then it's subject to challenge.
“So you are going to basically be looking at in all likelihood a multi-year rulemaking process undertaken by this administration, the result of which will almost undoubtedly be challenged by [environmentalists and other critics] and a continued period of uncertainty stretching throughout the court challenges of that particular rulemaking.”
As to whether the D.C. Circuit is likely to rule in the challenge to the power plant rule, which the full court heard arguments over in September, Garbow hedges. “It's difficult for obvious reason to levy any predictions about when the D.C. Circuit will or will not rule. I think the only fair comment I can make on that is it was one of the rare instances where an en banc panel heard the arguments,” which were delivered well by all sides.
“The D.C. Circuit has all it needs. . . . But this is a complicated case . . . and they are likely to issue multiple opinions. . . . When they will rule is anybody's guess.”
One possible reason for delay is if the court grants rule opponents' request to add new pieces to the case focusing on EPA's administrative rejection of their petitions for review.
That issue was recently teed up, and is one where critics are asking the court to do so, rule supporters are vehemently against it and the Trump EPA is taking no position. The court will soon have to decide and if it agrees to add the issues, then the prospects of substantial delay are likely.
Also since Trump signed the executive order, DOJ asked that the case be put on hold so EPA can review the rule -- a move that CPP proponents are opposing, citing in part the high court's decision to hear the WOTUS rule case.
Complicated Issues
Garbow adds that whenever EPA decides to move forward on a process to roll back the CPP, it has many options but all have complicated science and legal issues that will have to be addressed.
For example, if EPA chooses to adopt a position that it is barred from issuing a rule under section 111 of the Clean Air Act, such as the CPP, because it has already regulated power plants under section 112 of the law -- an approach known as the “112 exclusion,” -- then EPA will have to win consent from DOJ because that would entail a complete reversal of what it argued to the court.
Garbow also addresses efforts by EPA Administrator Scott Pruitt to undo an information collection request (ICR) for methane emissions data from existing oil and gas operations, noting that “good outputs require good inputs” and without the information that would have been collected from the industry, “You will either have a differing output that is suspect to challenge . . . or delays because of a need for a robust record."
He adds, however, that is it “worth noting that a possible outcome from the Administration's rollback of the ICR is that they simply will not proceed with a regulatory process to address certain methane emissions from existing sources.”
Also, he notes efforts by the Trump EPA and the National Highway Traffic Safety Administration to revisit the Obama EPA conclusion that the vehicle GHG standards for model years 2022 through 2025 are appropriate, is not necessarily a clear signal that the new administration will abandon those limits.
“What this does is continue for a bit a piece of the uncertainty. . . . What they are saying today is they will review that again and that information will include working with NHTSA more, and in April 2018 another final determination will be issued.
“I wouldn't jump to any conclusion that they will make changes in the end,” he says. “But the announcement takes away some degree of certainty”
Finally, Garbow warns that Trump administration plans to cut EPA's budget could undercut Administrator Scott Pruitt's ability to reasonable manage the agency's priorities and set the agency's rulemaking schedules.
“You will find soon courts creating deadlines that the agency and executive branch will have a hard time meeting,” given the “incredible amount” of work EPA is required to do under the environmental statutes, both as initial actions along with regular reviews.
In an email after the interview, Garbow notes that there is still uncertainty about the scope of the cuts and how Congress might address them. “We have already heard some bipartisan pushback to the deep cuts proposed by the administration so do not yet know the ultimate severity of the cuts.”
He also adds that the role of policy riders is unclear. “For example, I would think that there might be tradeoffs between some cuts and riders that prevent the agency from spending appropriated funds to implement or enforce certain rules.”
And he again warns about the agency's statutory obligations. “If budget cuts cause EPA to miss more statutory deadlines, which is totally predictable given extent of proposed cuts, [it would be] reasonable to expect an uptick in mandatory duty lawsuits by environmental groups, and EPA relinquishing control of its schedule to the court."
Garbow joined Gibson Dunn as a partner March 6. He worked as EPA general counsel from 2013 through the end of the Obama administration, which he joined in 2009. Prior to that, he was in private practice from 2002-2009, and before that he worked at both DOJ, in the Environmental Crimes Section from 1997-2002, and at EPA, from 1992-1997.
In his new position he intends to focus on environmental litigation, investigations and enforcement defense; climate change policy; and development and use of clean technologies.
https://insideepa.com/daily-news/former-obama-epa-general-counsel-expects-difficulties-trump-epa
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6th Circuit Appeal Seeks to Expand High Court's CWA 'Jurisdiction' Ruling
Apr 7, 2017 | Inside EPA
By David LaRoss
A federal appeals court is weighing a novel case that if successful could expand a Supreme Court precedent which opened the door to filing suits over federal regulators' Clean Water Act (CWA) jurisdictional determinations (JDs), with the suit aiming to expand the precedent beyond JDs to EPA "objections" to some state-crafted CWA permits.
Briefing starts next month in Marquette County Road Commission v. EPA, et al., which appears to be the first case aiming to expand to other EPA decisions the high court's 2016 decision that regulators' CWA jurisdictional determinations (JDs) are "final agency actions" subject to suit. In the case, the commission is appealing a lower court ruling that said the roads authority may not sue over an EPA "veto" of a CWA section 404 permit proposed by Michigan.
The district court ruled against the commission on May 18 but then the Supreme Court on May 31 issued its unanimous opinion in Hawkes Co. v. Corps saying JDs can be subject to legal challenge. The commission then petitioned the district court to reconsider the case on June 13, saying the precedent set by Hawkes should allow it to challenge 404 permit vetoes -- but the court rejected this in a Dec. 14 order.
The Marquette County Road Commission then appealed the case to the U.S. Court of Appeals for the 6th Circuit, and initial briefing in the case is set to begin May 8. The commission is expected to reiterate the arguments in its petition for reconsideration, teeing up a debate over the scope of the Hawkes precedent.
A ruling for the county would allow immediate court challenges when EPA finds that a state's proposed section 404 permit for dredge-and-fill activity is fatally flawed, and invokes its CWA authority to shift authority for crafting that permit to the Army Corps of Engineers. The U.S. District Court for the Western District of Michigan held that the agency's objections are not reviewable final action, in part because the federal government continues to actively work on the issue until the Corps crafts its final permit.
While there has been no substantive briefing in the appeal, the commission has already signaled in its preliminary filings in the appeal that it will ask the 6th Circuit to reject the district court's reasoning on "finality."
Hawkes concerned JDs, where regulators make a finding on whether particular waters are subject to CWA limits and permit mandates, but the Marquette commission argued in its reconsideration petition with the district court that the same principles apply to EPA's permit objections.
"Like the JD in Hawkes, which divested the plaintiff of the safe harbor and created the need for plaintiff to seek a permit from the Corps, EPA's veto here divested Plaintiff of the permit proposed by the state and created the need for Plaintiff to seek a permit from the Corps," the petition said.
Different Issues
However, Judge Robert Holmes of the district court held in his Dec. 14 order that Hawkes and Marquette dealt with fundamentally different issues because the JD recipients in Hawkes were trying to avoid going through the CWA permit process by arguing that their property was not subject to the CWA at all, while the road commission filed a permit application on its own.
"In contrast [to Hawkes], here, Plaintiff's permit has not been denied. In Plaintiff's own words, the EPA's objections 'created the need for Plaintiff to seek a permit from the Corps.' This is not a legal consequence. . . . Plaintiff must simply continue with the administrative process," Holmes wrote in his Dec. 14 order rejecting reconsideration.
Further, he said, the permit objection is not EPA's final say in the process. "[O]nce permitting authority transfers to the Corps, the EPA lacks authority to withdraw its objections and return permitting authority to the state. . . . Nonetheless, the EPA's involvement in the permitting process continues even after the Corps has permitting authority," Holmes wrote.
Under the CWA, states can seek delegated authority from the Corps for authority over dredge-and-fill permits governed by section 404 of the law, in addition to the separate delegation they can seek from EPA to craft and enforce discharge permits under CWA section 402.
However, EPA retains the ability to "object" to a pending state-issued permit, giving regulators 30 days to rework the document and address whatever flaws the agency has identified. If no resolution is reached by that deadline, federal authorities take over crafting the permit -- with authority shifting to EPA for a CWA section 402 permit or the Corps for section 404.
In its filings, Marquette argued that the 30-day deadline is when "an EPA objection crystalizes into a veto," becoming reviewable final action.
While most states have delegated permit programs for section 402, only Michigan and New Jersey have authority over their states' dredge-and-fill permits. An attorney close to the case says this will limit the immediate impacts of any ruling in Marquette's favor because a ruling on section 404 objections likely will not affect the prospects for suits over section 402.
"Sections 404 and 402 have some differences. Which isn't to say you shouldn't be able to challenge there too, but it's not the same as what we have here," the attorney says.
Permit Powers
However, EPA is currently weighing policies to encourage more states to take on section 404 permit powers, and some observers say the Trump administration could try to boost that effort as part of its overall agenda to shift power from federal regulators to the states.
Such a move would also weaken the leeway future administrations would have to enforce a broad reading of CWA jurisdiction, since disputes over whether certain wetlands or waterbodies are covered by the law most often involve dredge-and-fill activity rather than pollution discharges.
https://insideepa.com/daily-news/6th-circuit-appeal-seeks-expand-high-courts-cwa-jurisdiction-ruling
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Court Upholds Cap-and-Trade Program
Apr 7, 2017 | E&E Climatewire
By Debra Kahn
California's landmark system for curbing greenhouse gases can continue through at least 2020, a state court ruled yesterday.
The decision by the 3rd District Court of Appeal in Sacramento found that the cap-and-trade program is not an illegal tax as industry groups had contended. It frees the state to continue holding auctions through 2020. Lawmakers, however, still hold the key to the market after the end of the decade.
"It's great for the state," said Danny Cullenward, a research associate at the Carnegie Institution for Science who has been analyzing the market since its inception. "It's an unambiguous win."
The cap-and-trade program has been selling carbon allowances since 2012 under California's economywide ceiling on 1990 emissions levels by 2020.
Legal uncertainty has dogged the program for the past year, dampening demand for permits and reducing state revenues. The state has received about $4.4 billion in auction proceeds since trading began in 2012, but only about $500 million over the past year. Gov. Jerry Brown (D) and lawmakers have been spending the money on the state's high-speed rail project, affordable housing near transit and other programs linked to emissions reductions.
The three-judge panel unanimously decided that California's landmark 2006 climate law, A.B. 32, gives the state the authority to conduct auctions. Two of the judges also said that the sale of permits does not constitute an illegal tax under Proposition 13, a state constitutional amendment that requires new taxes to be approved by a two-thirds legislative majority.
Carbon traders responded to the ruling immediately, driving up prices for allowances on the secondary market. Current prices for allowances representing 2017 emissions rose 38 cents to $13.99 per ton, according to Dan McGraw, a senior market strategist for ICIS U.S. Carbon Markets.
The California Chamber of Commerce and Morning Star Packing Co., a tomato processing company, had argued that the state-run quarterly auctions amount to an illegal tax under Proposition 13 because A.B. 32 was only approved by a majority vote. Industry plaintiffs also argued that A.B. 32 itself does not give the state Air Resources Board the authority to conduct auctions, but merely to implement a cap-and-trade system.
Tony Francois of the Pacific Legal Foundation, who represented the plaintiffs, said he was considering whether to appeal the decision to the state Supreme Court. "We're obviously disappointed," he said.
Environmentalists who sided with the state cheered the ruling as a bright spot in a grim national climate policy landscape.
"It's a good day amidst a sea of darkness," said Alex Jackson, director of the Natural Resources Defense Council's California climate program. "It removes one of the key legal clouds hanging over the program and I think forcefully rebukes the notion that selling essentially the privilege to pollute constitutes taxation."
Ball in lawmakers' court — but how far?
The decision removes some pressure on state lawmakers to immediately reauthorize the program with a supermajority vote. But because the program still faces potential challenges after 2020, lawmakers must act if they want to ensure its extension. Without a two-thirds vote, a post-2020 program would still be vulnerable to legal challenges that cite Proposition 26, a 2010 initiative that extended Proposition 13 to apply to fees as well as taxes.
"This decision is a reaffirmation of California's world-leading efforts to reduce greenhouse gas pollution," said Anthony Reyes, a spokesman for Senate President Pro Tempore Kevin de León. "But we need to redouble our efforts even with the court's ruling. The Senate will continue its work to extend and expand California's climate program and to ensure sound legal footing in order to meet the 2030 targets enacted under S.B. 32 last year."
Work in the Assembly is already underway, with two bills introduced that would authorize some sort of market-based program after 2020. The author of one of the bills, Assemblymember Cristina Garcia (D), signaled support for cap and trade yesterday but also that she would seek some changes to the program to account for localized pollution.
"Good news for CA's! [Californians]," she said on Twitter. "Though we need to do more in communities like mine, to ensure #environmentaljustice for all."
The judges' decision steered clear of one of the main arguments that industry had made — that the program should be subjected to a court test known as Sinclair Paint, which is used to evaluate whether a charge is a tax or a fee. The state had argued against that approach, contending that cap and trade is a novel type of revenue-raising program.
"Consistent with the urgings of the state and its supporters, the court declines to view the auction as either a tax or as traditional regulatory fee of the type set forth in the landmark Sinclair Paint case," said Cara Horowitz, co-director of UCLA's Emmett Institute on Climate Change and the Environment. "It treats the auction as something else entirely, something more like a voluntary purchase of a market good."
Observers disagreed on whether that part of the ruling would affect future legal challenges to the program. While Horowitz said the court's "rationale makes the auction look less like a tax under any analytical approach," Cullenward said a supermajority vote is still needed. "This case does not change the question or the need for ARB or any other advocate of carbon pricing to obtain legislative authority and confront Prop 26," he said.
http://www.eenews.net/climatewire/2017/04/07/stories/1060052786
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