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ACC PM 5/8/2017
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(ACC Mentioned) Plastics Industry Pushes For Pipe Choice Laws In A Number Of States
May 8, 2017 | Plastics News
By Steve Toloken
The plastics industry is making a major lobbying push in state capitols to open more of the huge government infrastructure market to plastic pipe, arguing that legacy laws favor traditional materials like ductile iron and concrete. -
(ACC Mentioned) The Business Of Chemistry
May 8, 2017 | Chemical & Engineering News
By Bibiana Campos Seijo
The business of chemistry not getting enough respect for what it does is one of the points that Mark Jones, executive external strategy and communications fellow at Dow Chemical, made in the recent ACS webinar, “The Good, the Bad & the Uncertain: Public Perception of the Chemical Enterprise.” -
Energy and Environment EPA Dismisses Half Of Key Board’s Scientific Advisers, Interior Suspends More Than 200 Advisory Panels
May 8, 2017 | The Washington Post
By Juliet Eilperin and Brady Dennis
Both the Environmental Protection Agency and the Interior Department are overhauling a slew of outside advisory boards that inform how their agencies assess the science underpinning policies, the first step in a broader effort by Republicans to change the way the federal government evaluates the scientific basis for its regulations. -
Our Health Protections At Risk: TSCA Reform Undone By “Regulatory Reform”?
May 8, 2017 | Environmental Defense Fund
By Lindsay McCormick and Richard Denison
On February 24th, President Trump signed Executive Order 13777, calling on all government agencies to recommend regulations for “potential repeal, replacement, or modification.” -
NGO: EU Creates Regulatory Loopholes With DecaBDE Exemptions
May 8, 2017 | Chemical Watch
The European Union is "undermining its own proposals" to protect human health and the environment by adding "unacceptable" exemptions to a ban on brominated flame retardant decaBDE, an NGO says. -
U.S. To Tell World 'Competitiveness' Comes First
May 8, 2017 | E&E Climatewire
By Jean Chemnick
The United States under President Trump has a new climate mantra: Energy independence and competitiveness come first. -
Dozens Of Groups Urge Trump To Leave Paris Climate Deal
May 8, 2017 | The Hill - E2 Wire
By Rebecca Savransky
Dozens of conservative and free-market groups are reportedly urging President Trump to leave the Paris climate deal. -
Mexico, Canada Stake Out Their NAFTA Negotiating Positions
May 8, 2017 | E&E Energywire
By Nathanial Gronewold
When the North American Free Trade Agreement is renegotiated, Canada's energy provinces will be at the table, officials have confirmed, concerned as they are over the potential impacts on their oil- and gas-dependent economies. -
Trump Team Defends Fracking Authority As It Rethinks Rule
May 8, 2017 | E&E Energywire
By Ellen M. Gilmer
Government lawyers walked a fine line in legal briefs Friday, arguing that the Interior Department does have authority to regulate hydraulic fracturing but shouldn't have to continue defending an Obama-era fracking rule in court. -
Who's Watching the Oil and Gas Industry in California?
May 8, 2017 | Environmental Working Group
By Bill Allayaud
California's well-earned reputation as the nation's greenest state, with cutting-edge policies mandate fuel efficiency and renewable energy, hides a surprising fact: California also produces the third-most oil in the country. -
Can The Supreme Court Stay Be Lifted? Does It Matter?
May 8, 2017 | E&E Energywire
By Ellen M. Gilmer
Federal judges' consideration of how to handle a legal battle over the Clean Power Plan as the Trump administration unwinds the rule has lawyers from both sides puzzling over a thorny procedural issue with uncertain implications: Could the court's approach end an existing Supreme Court order freezing the rule? And if so, would it matter? -
AASHTO, NRC Highlight Rail Benefits Under Omnibus Bill
May 8, 2017 | Progressive Railroading
The $1.1 trillion spending bill passed by Congress last week provided funding for Amtrak, rail and transit programs, and $500 million for the U.S. Department of Transportation's Transportation Investment Generating Economic Recovery (TIGER) program. -
Investors, Key GOP Lawmaker Warn Again Reneging On Paris
May 8, 2017 | E&E Climatewire
By Evan Lehmann
More than 200 large investors are urging world leaders to keep their promises enshrined in the Paris Agreement as President Trump prepares to make a decision about potentially withdrawing the U.S. from the global pact. -
Only 7 U.S. Diplomats Are At U.N. Climate Talks This Week
May 8, 2017 | E&E Climatewire
By Jean Chemnick
A skeleton crew will represent the United States at U.N. climate talks that begin today in Bonn, Germany. -
Incoming Climate Summit Chair Ready To 'Defend And Uphold' Paris Deal
May 8, 2017 | PoliticoPro
By Kalina Oroschakoff
Fiji, the island nation chairing this year’s U.N. climate change summit, will make it a priority to move ahead with implementing the Paris agreement — with or without the U.S., its chief climate negotiator said today. -
Perez Jabs Trump’s ‘Aggressive Stupidity’ On Environment
May 8, 2017 | The Hill - E2 Wire
By Mark Hensch
Democratic National Committee (DNC) Chairman Tom Perez on Monday accused President Trump of “aggressive stupidity” on the environment.
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(ACC Mentioned) Plastics Industry Pushes For Pipe Choice Laws In A Number Of States
May 8, 2017 | Plastics News
By Steve Toloken
Washington — The plastics industry is making a major lobbying push in state capitols to open more of the huge government infrastructure market to plastic pipe, arguing that legacy laws favor traditional materials like ductile iron and concrete.
Plastics industry lobbyists say it's likely a years-long project, but they see a potentially significant payoff: The American Chemistry Council estimates that at least 50 percent of the pipe infrastructure market in storm water and drinking water is off limits to plastic because of regulations.
"What we're trying to do here is increase the size of the opportunities in the market for plastic pipe and break down those barriers that have created virtual monopolies for other materials," said Keith Christman, managing director of plastic markets for Washington-based ACC.
But the campaign is getting significant pushback, both in state capitols and Washington.
Opposition is coming not only from competitive materials, like ductile iron pipe makers, but also from material-neutral water utility organizations like the American Water Works Association.
AWWA said it is not taking sides in material choices but says the changes pushed by the plastics industry would hamstring decision making by local water utilities and "lead to a significant increase in bid protests and litigation."
"We should not adopt a one-size-fits-all, top-down mandate from the state on unique decisions that are best handled by design professionals and local entities," AWWA said in a policy statement. AWWA officials did not respond to requests for comment.$1 trillion investment opportunity?
With the Trump administration and Congress in the early stages of a potential $1 trillion infrastructure spending plan, the topic will only get more attention.
A legislative analysis by Michigan, for example, said cities there will need to spend $13 billion over the next 20 years to update "badly outdated" drinking and wastewater pipes.
So far, the plastics industry's push has not become law in any state. It's gone furthest in South Carolina, where it passed the state's House in early March in a 55-47 vote.
ACC, with support from groups like the Plastics Pipe Institute and the Uni-Bell PVC Pipe Association, is targeting a half-dozen states this year: Arkansas, Indiana, Ohio, Michigan, North Carolina and South Carolina.
Specifically, ACC wants laws that say that if state funds are used in local projects, bidding must be open to any materials that meet specifications set by groups like ASTM International and AWWA.
ACC argues that open bidding can save taxpayers money by lowering the cost of new projects. The idea has support from groups like Americans for Tax Reform and the National Taxpayers Union.
"The reality is that communities across the country are paying way more money than they need to for this infrastructure replacement that needs to go on," Christman said. "There are local restrictions in place that mandate only ductile iron pipe for drinking water, for example, or only concrete pipe for stormwater."
ACC's studies show that cities and counties can reduce the capital costs for new pipes if they open up their bidding process. That's true whether or not they use plastic, ACC said.
In general, storm water or drinking water pipe costs average $300,000 to $500,000 per mile, but open bidding can reduce the cost by $100,000 to $200,000 per mile.
ACC says cities in the same state can see big differences: In North Carolina, for example, Raleigh's "closed competition" results in pipe capital costs of nearly $305,000 per mile, while Charlotte's "open competition" system means its pipe costs about $149,000 per mile, ACC said.
ACC said its legislation would not restrict engineering judgment by local water utilities, and would still allow them to consider local conditions.
But opponents are skeptical.Skeptics seek proof
In South Carolina, State Rep. Russell Ott led opposition to ACC's plan during the March 9 debate and noted intense lobbying on both sides.
He said he had not seen "tangible" examples where existing rules were causing a problem and said changes could complicate bidding and lead to lawsuits.
"It's going to increase costs, it's going to slow down projects that our constituents that we represent depend on to get done in a timely fashion so they can have drinking water delivered to them in their homes," Ott said.
The nationwide push also is a red flag for Ott and some other legislators.
"What did raise a level of concern to me was to find out that this is not just South Carolina," he said. "If we could point to something here in South Carolina and show, here is a problem that has occurred and this is what we're trying to solve, I might not be here.
"But this is an industry push, it seems, not only here in South Carolina, but everywhere else, and that's what gives me some pause," he said.
Some legislators did speak in favor of the plastics industry's open bidding push.
State Rep. Dwight Loftis, for example, said his local water utility supported the bill. He said newer materials may be less expensive or perform better, and compared it to the automobile industry, where car manufacturing is benefiting as new composite materials replace steel.
"What initiated [the legislation] appears to me, somebody already has their foot in the door and does not want the competition," he said.
Ott noted that the legislation also passed the state House last year, but then stalled in the state Senate, and suggested that could happen again this year.
Beyond the behind-the-scenes lobbying in state capitols, there's also a public relations battle.
For example, a former White House official for President George W. Bush, Darren Bearson, has published opinion columns in media outlets praising ductile iron pipe and criticizing plastic pipes, labeling them cheap, more prone to breaking and made from "potentially hazardous" materials.
On the other side, Bonner Cohen, a senior fellow at the conservative-leaning National Center for Public Policy Research, has written articles in water industry publications and Washington political media in favor of open bidding, noting that local governments have saved money with plastic pipe.
It's clear that the fight will continue. The Ductile Iron Pipe Research Association portrays it as "PVC pipe preference" legislation and said the plastics industry was "failing" because it had yet to pass laws in any state, despite trying for several years.
But ACC's Christman said that with a potential market of $6.5 billion to $10 billion, the plastics industry will keep pushing: "It's going to be something we're going to be working on for significant years."
http://www.plasticsnews.com/article/20170508/NEWS/170509903/plastics-industry-pushes-for-pipe-choice-laws-in-a-number-of-states
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(ACC Mentioned) The Business Of Chemistry
May 8, 2017 | Chemical & Engineering News
By Bibiana Campos Seijo
Let’s start this week’s editorial with a quiz.
Which of the following statements about the U.S. chemical industry is true?
1. The business of chemistry is an $800 billion enterprise.
2. Chemical companies invested $93 billion in R&D in 2015.
3. More than 96% of all manufactured goods are directly touched by the business of chemistry.
4. All of the above
If you guessed 4, you’re right, according to American Chemistry Council data. The data are remarkable and are telling of the crucial role that chemistry and the chemical enterprise play in terms of economic welfare in the U.S. (To learn more, see page 20.)
So the chemical industry should get some respect for that, right? Right, it should. But it doesn’t. Or at least it doesn’t feel like it does.
The business of chemistry not getting enough respect for what it does is one of the points that Mark Jones, executive external strategy and communications fellow at Dow Chemical, made in the recent ACS webinar, “The Good, the Bad & the Uncertain: Public Perception of the Chemical Enterprise.”
And of course the $64,000 question is: Why this lack of respect? Beyond being an economic engine, the chemical industry is a significant employer: In the U.S., it supports 810,000 skilled, good-paying jobs. For every chemistry job, 6.3 other jobs are created, Jones told William F. Carroll, a former ACS president and moderator of the webinar.
The chemical industry creates products that make our lives safer, healthier, and more sustainable. The examples are innumerable, and Jones quoted just a few: Thanks to lightweight materials such as carbon fiber, the energy required to move travelers around by air has dropped by 60% since 1970. Thanks to the development of high-performance, durable materials, the average age of cars in the U.S. has gone from 8.4 to 11.4 years over a period of 20 years. And there are loads more. The chemical industry’s products have provided greater energy efficiency, multiplied agricultural yield, and much more.
But chemists also get stuff wrong, and the business of chemistry does things like produce refrigerants that create a hole in the ozone layer. A problem is solved, but another one is often created. Good and bad frequently go together. Here, Jones cited an excellent example that C&EN covered a couple of years ago: Fritz Haber, one of the most controversial chemists of the 20th century, who, following the theme of the webinar, embodies the good and the bad simultaneously. Haber received the 1918 Nobel Prize in Chemistry for discovering a way to make ammonia at industrial scale. But he also supervised the development and first large-scale deployment of chemical agents in warfare.
The industry pays a high price for the mistakes it makes, and so it should. The data mentioned in the quiz are impressive, but we shouldn’t lose sight of the fact that getting it wrong has the potential to harm people and the environment. The chemical industry has a huge responsibility, and the level of accountability placed on it is probably greater than many other equally financially contributing industries. We must also accept that science is an iterative process, and we don’t know what we don’t know. In the case of Haber, he was helping feed the world with one hand and helping kill it with the other and doing so knowingly. In the case of chlorofluorocarbons, we were unknowingly creating a hole in the ozone layer. It took the industry two tries, but now it is selling substitutes that are both ozone-layer and climate-change friendly.
I’d say the industry gets respect, but that is often overshadowed by any mistakes that it makes, which greatly affect public trust, sometimes irreparably. Chemistry is a very powerful science, not only because it explains why things are the way they are, but also because it offers the ability to make things, solve problems, and save lives. The chemical industry is at the core of these efforts.
https://cen.acs.org/articles/95/i19/business-chemistry.html
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May 8, 2017 | The Washington Post
By Juliet Eilperin and Brady Dennis
Both the Environmental Protection Agency and the Interior Department are overhauling a slew of outside advisory boards that inform how their agencies assess the science underpinning policies, the first step in a broader effort by Republicans to change the way the federal government evaluates the scientific basis for its regulations.
EPA Administrator Scott Pruitt decided to replace half of the members on one of its key scientific review boards, while Interior Secretary Ryan Zinke is “reviewing the charter and charge” of more than 200 advisory boards, committees, and other entities both within and outside his department. EPA and Interior officials began informing current members of the move on Friday, and notifications continued over the weekend.
Pruitt’s move could significantly change the makeup of the 18-member Board of Scientific Counselors (BOSC), which advises EPA’s prime scientific arm on whether the research it does has sufficient rigor and integrity. All of the people being dismissed were at the end of serving at least one three-year term, although these terms are often renewed instead of terminated.
EPA spokesman J.P. Freire said in an email that “no one has been fired or terminated” and that Pruitt had simply decided to bring in fresh advisers. The agency informed the outside academics on Friday that their terms would not be renewed.
“We’re not going to rubber-stamp the last administration’s appointees. Instead, they should participate in the same open competitive process as the rest of the applicant pool,” Freire said. “This approach is what was always intended for the board, and we’re making a clean break with the last administration’s approach.”
Separately, Zinke has postponed all outside committees as he reviews their composition and work. The review will effectively freeze the work of the Bureau of Land Management’s 30 resource advisory committees, along with other panels focused on a range of issues, from one assessing the threat of invasive species to the science technical advisory panel for Alaska’s North Slope.
“The Secretary is committed to restoring trust in the Department’s decision-making and that begins with institutionalizing state and local input and ongoing collaboration, particularly in communities surrounding public lands,” Interior spokeswoman Heather Swift said by email Monday. “As the Department concludes its review in the weeks ahead, agencies will notice future meetings to ensure that the Department continues to get the benefit of the views of local communities in all decision-making on public land management.”
These moves came as a surprise to the agencies’ outside advisers, with several of them taking to Twitter to announce their suspensions.
John Peter Thompson, who chairs Interior’s Invasive Species Advisory Panel, tweeted Monday that he had been notified that “all activities are suspended subject to review by Depart of Interior.”
Members of EPA’s Board of Scientific Counselors had been informed twice — in January, before President Barack Obama left office, and then more recently by EPA career staff members — that they would be kept on for another term, adding to their confusion.
“I was kind of shocked to receive this news,” Robert Richardson, an ecological economist and an associate professor in Michigan State University’s Department of Community Sustainability, said in an interview Sunday.
Richardson, who on Saturday tweeted, “Today, I was Trumped,” said that he was at the end of an initial three-year term but that members traditionally have served two such stints. “I’ve never heard of any circumstance where someone didn’t serve two consecutive terms,” he said, adding that the dismissals gave him “great concern that objective science is being marginalized in this administration.”
Courtney Flint, a professor of natural resource sociology at Utah State University who had served one term on the board, said in an email that she was also surprised to learn that her term would not be renewed, “particularly since I was told that such a renewal was expected.” But she added, “In the broader view, I suppose it is the prerogative of this administration to set the goals of federal agencies and to appoint members to advisory boards.”
Ryan Jackson, Pruitt’s chief of staff, noted in an email that all the board members whose terms are not being renewed could reapply for their positions. “I’m not quite sure why some EPA career staff simply get angry by us opening up the process,” he said. “It seems unprofessional to me.”
Terry F. Yosie, who directed EPA’s Science Advisory Board from 1981 to 1988, noted in an email that the Board of Scientific Counselors does not report directly to the administrator or his office. “It’s quite extraordinary that such a body would receive this level of attention by the Administrator’s office,” he said.
Pruitt is planning a much broader overhaul of how the agency conducts its scientific analysis, said a senior administration official who spoke on the condition of anonymity to discuss internal deliberations. Pruitt has been meeting with academics to talk about the matter and putting thought into which areas of investigation warrant attention from the agency’s scientific advisers.
The agency may consider industry scientific experts for some of the board positions as long as these appointments do not pose a conflict of interest, Freire said.
Conservatives have complained for years about EPA’s approach to science, including the input it receives from outside scientific bodies. Both the Board of Scientific Counselors and the 47-member Scientific Advisory Board have come under criticism for bolstering the cause for greater federal regulation.
A majority of the members of the Board of Scientific Counselors have terms expiring this fiscal year, along with the terms of 12 members of the Scientific Advisory Board. GOP lawmakers have frequently criticized the Clean Air Scientific Advisory Committee (CASAC)—a committee within the Scientific Advisory Board—for its recommendation that the EPA impose much stricter curbs on smog-forming ozone. The seven-person panel, which is charged under the Clean Air Act to review the scientific basis of all ambient air quality standards, is legally required to have a medical doctor and a member of the National Academy of Sciences as members.
Sen. James M. Inhofe (R-Okla.), who questions the link between human activity and climate change and has several former aides now working for Pruitt, said in an interview earlier this year that under the new administration, “they’re going to have to start dealing with science, and not rigged science.”
House Science Committee Chairman Lamar Smith (R-Tex.) held a hearing on the issue in February, arguing that the Scientific Advisory Board should be expanded to include more non-academics. The panel, which was established in 1978, is primarily made up of academic scientists and other experts who review EPA’s research to ensure that the regulations the agency undertakes have a sound scientific basis.
“The EPA routinely stacks this board with friendly scientists who receive millions of dollars in grants from the federal government,” Smith said at the time. “The conflict of interest here is clear.”
In a budget proposal obtained by The Washington Post last month, the panel’s operating budget is slated for an 84 percent cut — or $542,000 — for fiscal 2018. That money typically covers travel and other expenses for outside experts who attend the board’s public meetings.
The document said the budget cut reflects “an anticipated lower number of peer reviews.”
Joe Arvai, a member of the Scientific Advisory Board who directs the University of Michigan’s Erb Institute for Global Sustainable Enterprise, said in an email that Pruitt and his colleagues should keep in mind that the board’s membership, just like its standing and ad hoc panels, “already includes credible scientists from industry” and that its “work on agency rulemaking is open to public viewing and comment. So, if diversity of thought and transparency are the administrator’s concerns, his worries are misplaced because the SAB already has these bases covered.
“So, if you ask me, his moves over the weekend — as well as the House bill to reform the SAB — are attempts to use the SAB as a political toy,” Arvai said. “By making these moves, the administrator and members of the House can pander to the president’s base by looking like they’re getting tough on all those pesky ‘liberal scientists.’ But, all else being equal, nothing fundamentally changes about how the SAB operates.”
Chris Mooney contributed to this report.
https://www.washingtonpost.com/news/energy-environment/wp/2017/05/07/epa-dismisses-half-of-its-scientific-advisers-on-key-board-citing-clean-break-with-obama-administration/?tid=ss_tw&utm_term=.7e38817c272b
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Our Health Protections At Risk: TSCA Reform Undone By “Regulatory Reform”?
May 8, 2017 | Environmental Defense Fund
By Lindsay McCormick and Richard Denison
Lindsay McCormick is a Project Manager. Richard Denison, Ph.D., is a Lead Senior Scientist.
On February 24th, President Trump signed Executive Order 13777, calling on all government agencies to recommend regulations for “potential repeal, replacement, or modification.” As of this writing, EPA has received 46,050 comments on its regulatory reform process. Interestingly, the overwhelming majority of these comments come from individuals across the country voicing their support for strengthening EPA’s regulatory protections, demonstrating that Americans stand strong in their opposition to regulatory roadblocks and rollbacks.
In compliance with this executive order, EPA held a stakeholder meeting last week to identify “regulatory reform” opportunities under the Toxic Substances Control Act (TSCA).
The irony – and absurdity – of this process is that not even a year ago, Congress passed, with overwhelming bipartisan support, sweeping reforms to TSCA, finally providing EPA with new tools and authority to review and manage chemicals more effectively. The need for a credible regulatory agency—one able to make timely, independent, science-based decisions about chemical safety—was seen by all parties as essential to increase public confidence in the safety of chemicals. Under-regulation, not over-regulation, has been the clear problem in this arena for decades.
EDF has submitted comments addressing the impact of this anti-regulatory process on implementing TSCA. EDF’s comments specifically address four actions that EPA has initiated or recently taken that are now under attack:Early Actions: EPA recently proposed bans – for the first time in nearly 30 years – of high-risk uses of three dangerous chemicals: trichloroethylene, dichloromethane, and N-methylpyrrolidone. Congress specifically authorized EPA to take these early actions to demonstrate that the new law was working. EDF has urged EPA leadership to follow and act on the science – which clearly points to the unreasonable risks of these chemicals – and not allow companies with a vested interest in these toxic chemicals to use this anti-regulatory process to derail these critical health protections. (You, too, can urge EPA to do so, here.)New Chemicals: Prior to TSCA reform, hundreds of new chemicals were allowed on the market every year without any demonstration that they were safe. Over the past year, EPA has made major improvements to its New Chemicals Review Program. However, some industry representatives are now attacking the program based on false assertions and are suggesting actions that are inconsistent with the law. Our comments address these claims.Framework Rules: The Lautenberg Act mandates that EPA develop three “framework” procedural rules to establish a robust system to identify, review, and manage chemicals already in commerce. The rules are required to be finalized by June (one year after the law’s enactment). All three were proposed in January, and have gone through public comment. We strongly oppose consideration of these rules in the regulatory reform process: Not only are these rules mandated by law and not yet finalized, but stakeholders have been provided ample opportunity to comment on the rules, including on opportunities to create efficiencies.Nanomaterial Reporting: In January, EPA finalized a TSCA section 8 nanomaterial reporting rule after more than a decade of delay. The rule will finally allow EPA to obtain basic risk-relevant information on such Nanomaterials often exhibit unique properties that can allow for novel applications, but those same properties also present the potential for novel or enhanced negative impacts on health or the environment. We have strongly urged EPA to retain and not further delay this rule, as such information has been identified by numerous expert bodies as essential to understand and manage their potential risks.
The agency is just starting to implement the new system mandated by Congress to better protect the public’s health from toxic chemical exposures. Taking anti-regulatory aim at TSCA’s vital new protections will only further undermine public and market confidence in EPA and do nothing to provide the stability that the business community sought through TSCA reform.
http://blogs.edf.org/health/2017/05/08/our-health-protections-at-risk-tsca-reform-undone-by-regulatory-reform/
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NGO: EU Creates Regulatory Loopholes With DecaBDE Exemptions
May 8, 2017 | Chemical Watch
The European Union is "undermining its own proposals" to protect human health and the environment by adding "unacceptable" exemptions to a ban on brominated flame retardant decaBDE, an NGO says.
The ban was agreed last week under the UN Stockholm Convention on persistent organic pollutants (POPs), but the EU "pushed for and supported blanket exemptions," according to the Centre for International Environmental Law (Ciel).
And, it says, use exemptions for the substance agreed at the eighth meeting of the Conference of the Parties (COP) to the convention in Geneva exceeded its POPs review committee's recommendations.
This recommended an exemption for legacy spare parts for the auto industry, but the agreement broadened this to:
· parts in new cars;
· textiles;
· aircraft;
· polyurethane foam;
· additives in plastic housings; and
· parts used for heating home appliances, irons, fans and immersion heaters.
The EU's proposals mean the use of decaBDE will be allowed in new cars and spare parts for nearly another 20 years, and in aircrafts for even longer, Ciel says. The EU pushed the exemption on behalf of the EU aerospace industry, it says, "despite Boeing having explicitly stated that this exemption was not needed".
These loopholes will "guarantee the continued contamination of people, food, air, and water for decades to come," Ciel says.
EDCs
The EU Commission has been promoting the same "loophole strategy" with its proposed criteria to identify endocrine disrupting chemicals (EDCs), Ciel adds.
The proposed criteria contain an exemption that would allow some biocides and pesticides specifically designed to interfere with hormone systems unregulated, the NGO says.
"This loophole undermines the effectiveness of scientific identification criteria that should protect the health and safety of EU citizens and future generations."
The Standing Committee on Plants, Animals, Food and Feed (SCoPAFF) expects to vote on the proposed criteria at its 17-18 May meeting.
https://chemicalwatch.com/55694/ngo-eu-creates-regulatory-loopholes-with-decabde-exemptions
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U.S. To Tell World 'Competitiveness' Comes First
May 8, 2017 | E&E Climatewire
By Jean Chemnick
The United States under President Trump has a new climate mantra: Energy independence and competitiveness come first.
The United States is "reviewing existing policies and regulations in the context of a focus on strengthening U.S. economic growth and promoting jobs for American workers, and will not support policies or regulations that have adverse effects on energy independence and U.S. competitiveness."
A version of that phrase appeared in no fewer than six answers last week to written questions from other nations about U.S. plans for cutting greenhouse gas emissions.
It will likely come up again when the U.S. team fields similar questions in person this week as thousands of diplomats meet in Bonn, Germany, for midyear talks. The aim is to help put the 2015 Paris Agreement into motion, but the real focus will be whether the United States plans to remain a part of the global climate accord or not (see related story).
The phrase was particularly notable in response to a question from the European Union about what additional steps the United States might take to meet a long-standing target of cutting emissions 17 percent below 2005 levels by 2020 and again when the administration was asked about its opposition to the Clean Power Plan.
"Of course, the ironic thing is that the actions they're taking domestically to impede clean energy investments is really the threat to competitiveness and jobs," said Alden Meyer of the Union of Concerned Scientists. "It will be interesting if other countries make that point now that the U.S. has formally responded to their questions."
But Meyer also said there is a general understanding among others that the U.S. delegation at this point is made up of career staff with virtually no input on Trump's domestic policies or the choice to stay in Paris.
"And, of course, there's no one home in the State Department," he added. There are currently no deputy political appointees between Secretary of State Rex Tillerson and the civil servant team who will represent the United States in Bonn this week. The Trump White House has been unusually slow to submit nominations to the Senate. And where his predecessor John Kerry took an active role in negotiating Paris and spoke of it frequently, Tillerson has been publicly silent.
https://www.eenews.net/climatewire/2017/05/08/stories/1060054179
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Dozens Of Groups Urge Trump To Leave Paris Climate Deal
May 8, 2017 | The Hill - E2 Wire
By Rebecca Savransky
Dozens of conservative and free-market groups are reportedly urging President Trump to leave the Paris climate deal.
"The undersigned organizations believe that withdrawing completely from Paris is a key part of your plan to protect U.S. energy producers and manufacturers from regulatory warfare not just for the next four years but also for decades to come," said a letter sent Monday to President Trump signed by 38 groups.
The letter was reported by The Washington Examiner.
The groups that signed the letter include the Competitive Enterprise Institute and the American Energy Alliance.In the letter, the groups wrote that some officials in the president's administration "are relying on recent statements from former Obama administration officials that the U.S. can withdraw its [previous commitment under the accord] and submit a new [target] that makes far less ambitious commitments to reduce greenhouse gas emissions."
"Even if the U.S. were to be cleared by UN officials to submit a less ambitious [goal], this is not the end of the threats posed by the Paris Climate Treaty to your pro-energy agenda and to the economic future of our country," the letter said.Trump administration officials are due this week to discuss the United States' involvement in the Paris climate deal as the White House nears a decision on the fate of the pact. Trump told supporters during a rally last month that he would announce a decision on the status of the climate deal within weeks, meaning he could be days away from either pulling out of the agreement or staying in it. Trump is reportedly leaning toward ending the United States' involvement in the pact, an international agreement to cut greenhouse gas emissions.
http://thehill.com/policy/energy-environment/332336-dozens-of-groups-urge-trump-to-leave-paris-climate-deal
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Mexico, Canada Stake Out Their NAFTA Negotiating Positions
May 8, 2017 | E&E Energywire
By Nathanial Gronewold
HOUSTON — When the North American Free Trade Agreement is renegotiated, Canada's energy provinces will be at the table, officials have confirmed, concerned as they are over the potential impacts on their oil- and gas-dependent economies.
But international lawyers believe they may not have all that much to worry about and question whether energy, in particular fossil energy, will be on the agenda at all.
Most expect energy trade in all forms will be on the negotiating table in any new NAFTA talks.
The subject was kept out of the original negotiations more than 25 years ago in order to avoid a sensitive issue of Mexican sovereignty. But energy seems to at least warrant a mention in a new NAFTA.
"We expect that energy will be a topic for the NAFTA discussions," said James O'Brien, a principal at the law firm Baker McKenzie. "At the time NAFTA was first agreed, the treaty provided that energy free trade arrangements were subject to each country's constitutional restrictions. Now that the Mexican Constitution has been amended to open the market, we expect energy will be a subject of discussion and negotiation."
Yet there is little interest among U.S. oil companies in opening up Canada and Mexico further to their investments. Utility sector companies eyeing opportunities in Mexico's power generation and delivery are likewise looking forward to reforms already underway and are not pressing for more changes.
Though not as open as the United States, the other two countries' energy sectors are already substantially open, especially in comparison to other foreign oil patches that U.S. companies are already investing in. Access to Canada's energy riches is about equal to the United States.
José Valera, a partner at the law firm Mayer Brown, sees little reason to bring up energy at all in new NAFTA talks.
"When something isn't broken, you shouldn't fix it," Valera said.Provincial concerns
President Trump's tough talk on trade and relations with Mexico had been making oil and gas circles nervous well before his victory in November. Companies are particularly worried about his call for the construction of a border wall, fearful that it could disrupt the burgeoning energy trade between the two nations (Energywire, June 27, 2016).
Across both borders, Mexican and Canadian officials have been wary as well.
In Mexico, leaders openly discussed the possibility of ending NAFTA entirely and falling back on standard World Trade Organization framework. Canadians have been loudly vowing to defend their interests, yet Prime Minister Justin Trudeau scrambled via phone to ensure Trump didn't simply pull the United States out of NAFTA, pledging to renegotiate the pact instead.
With some 70 percent of its exports flowing to one country — the United States — Canada has the most to lose.
Last week at a press conference held here during the annual Offshore Technology Conference, officials from Alberta and Newfoundland and Labrador said their provinces are watching the NAFTA discussions carefully and that they will want a seat at the negotiating table. Canada's consul general based in Dallas confirmed that they will have one. Provinces run point on natural resources management in Canada.
"As we do know, there are talks underway with NAFTA, there are some preliminary discussions," said Siobhán Coady, Newfoundland and Labrador's minister of natural resources. "NAFTA does play into our respective economies quite significantly. We'll be watching it with interest obviously, and see ... how those talks continue to evolve and the impacts they may or may not have on how we're developing offshore our oil and gas industry and our energy and energy opportunities."
Consul General Sara Wilshaw said the provinces were at the NAFTA bargaining table in the early 1990s and that they will be there again during any renegotiation process.
"From a federal perspective, certainly the provinces are in as a part of the negotiating environment, and we worked extremely closely with the provinces" when NAFTA was first finalized, Wilshaw said.
Valera believes they have nothing to be concerned about with regard to energy trade from the U.S. negotiating side. Trump's beef with NAFTA stems from the offshoring and outsourcing of jobs by U.S. companies looking to exploit cheaper labor, he noted. This is a non-issue between Canada and the United States.
Furthermore, he argued that the United States has thus far been the greatest benefactor of Mexico's energy market reforms.
Natural gas exports from the United States to Mexico are booming and poised to grow larger, while the United States is also now exporting some light crude to Mexico. Authorities in Mexico are now liberalizing the refined products market there, potentially opening up more export opportunities. These investments are flowing both ways: Mexico's state-owned oil company Petróleos Mexicanos has since opened up at least four retail gasoline stations in the Houston area, emblazoned with the Pemex brand.
Valera predicts energy industry interests in the United States will do nothing to upset these already deepening trade arrangements in any new NAFTA discussions.
"The energy part ... is actually working very well, especially for the United States because the United States exports electricity, oil, fuels and natural gas to Mexico," he said. "And actually the imports of Mexican crude into the United States have been coming down."
As for Mexico's negotiators, "it's hard to think what else they can open," he said.
Though it has substantially liberalized its oil and gas sector, Mexico still requires some local procurement and local hiring for projects to move forward. As with Canada, U.S. companies are exempted from these rules, said O'Brien, thanks to clauses in the original treaty meant to ensure that companies from all three nations are treated equally, as if they are domestic companies.
"NAFTA provides investment protection to its treaty members," said O'Brien. "Moreover, these investments have access to an ad hoc dispute resolution process designed under NAFTA aiming to preserve their interest and panel award over any local court resolution. Special visas are granted to companies which are NAFTA vis-à-vis other countries, giving thereafter certain advantages and/or protection to these NAFTA companies."
If energy is incorporated into a new NAFTA in some way, he and Valera both agree that the actual substance of the wording in a new trade treaty will have minimal to no actual impact in the real world.
"Given the changes in Mexico, which have opened the market for [oil exploration and production], transportation, and electricity generation already, it is not clear that there will need to be significant additional reforms in the NAFTA process," O'Brien said.
Reflecting on progress to date, Valera said he would advise that negotiations virtually avoid the topic of energy entirely.
"If I were the United States or Mexico I wouldn't touch that," he said. "It remains to be seen what specifically concerning energy is going to be put on the renegotiation agenda, but I would be surprised if it's anything of any substance relative to the situation that we already have."
Nevertheless, officials are anticipating that it will be on the table and say they are paying attention closely and are prepared to defend their interests.
"We are all interested, I think, in all countries in North America in ensuring maximum opportunities, so we look forward to what transpires in the next several months," said Newfoundland and Labrador's Coady.
https://www.eenews.net/energywire/2017/05/08/stories/1060054181
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Trump Team Defends Fracking Authority As It Rethinks Rule
May 8, 2017 | E&E Energywire
By Ellen M. Gilmer
Government lawyers walked a fine line in legal briefs Friday, arguing that the Interior Department does have authority to regulate hydraulic fracturing but shouldn't have to continue defending an Obama-era fracking rule in court.
Justice Department lawyers made those arguments to the 10th U.S. Circuit Court of Appeals as part of the latest round of legal wrangling over the Bureau of Land Management's fracking rule, the Obama administration's marquee effort to increase oversight of modern oil and gas development on public and tribal lands. The rule has been sidelined by litigation since its March 2015 release.
"Although BLM had authority to promulgate the Hydraulic Fracturing Rule, it also has substantial discretion in how it carries out its statutory mission of administering federal and Indian leases," the brief says. "The specific provisions of the Rule may no longer reflect BLM's best judgment of how to exercise that authority."
The agency is in a tricky position after a district court struck down the fracking rule last summer, finding that the federal government has no authority over fracking. The Obama administration immediately appealed the decision, calling it a "manifestly incorrect" interpretation of federal laws.
The Trump administration is now trying to preserve its defense of federal authority over fracking while simultaneously walking away from President Obama's approach.
"In holding that BLM lacks authority to ensure safe operations on federal and Indian lands, the district court made a serious and consequential error about federal authority and the interpretation of statutes that BLM administers," government lawyers told the 10th Circuit. "BLM now faces a significant litigation dilemma: In order to seek review of the district court's error, the agency would have to defend a rule that it no longer considered appropriate to protect federal and Indian lands."
BLM is urging the court to instead put the case on hold while the agency reviews the rule, arguing that active judicial review would not be appropriate because the rule may change. While BLM believes the lower court's decision was wrong, "review of that decision is not urgent in light of the upcoming rulemaking," the brief said.
Courts have recently granted several similar requests in litigation over other Obama-era regulations (Greenwire, April 27).Appealing without the government
Friday's brief also sets the stage for another battle that may be on the horizon: If the Trump administration doesn't want to defend the rule, can environmental groups push the appeal forward on their own? The 10th Circuit asked the litigants to address the question in this round of briefs.
DOJ lawyers argued it's not relevant at this time because BLM only wants to pause the case, not walk away from it. But if the agency were to abandon its appeal, they argued, environmental groups would not have legal standing to carry it forward on their own.
They point to Diamond v. Charles, a 1986 Supreme Court decision that held that an intervenor did not have standing to appeal a court's decision to void a statute when the government itself declined to appeal.
Several appellate courts have applied Diamond to lawsuits over regulations, finding that intervenors supporting challenged rules lacked standing to appeal judgments without the government — though at least one circuit, the 9th, has taken a more permissive approach.
The 10th Circuit, where the fracking rule litigation is playing out, does not have much case law on the issue. In proceedings over the Forest Service's roadless rule, it allowed environmental groups to defend the Clinton-era regulation when the Bush administration would not. But the court ultimately dismissed the appeal in 2005 on unrelated grounds and never addressed the standing question directly.
The Sierra Club, Earthworks and several other groups have defended the fracking rule since the litigation began and have said they plan to continue fighting for it even if the Trump administration does not (Energywire, March 16).
"If the Court were to address the issue here, it should find that Diamond is controlling and that the Environmental Intervenors would lack standing to pursue their own appeal," DOJ told the court.
BLM also noted that environmental groups would have future opportunities to challenge the results of the agency's new rulemaking process or oppose individual permitting decisions.
The groups are expected to push back strongly on DOJ's position, arguing that they have a legal interest in seeing the lower court's decision reversed.Status quo
Finally, the court asked BLM to discuss what should happen to the fracking rule if the case is put on hold. The agency noted that because the district court scrapped the rule, the 10th Circuit can preserve the status quo by simply letting that judgment stand while holding the appeal in abeyance.
If the appeal is ultimately made moot after BLM completes its new rulemaking process, the 10th Circuit should vacate the lower court's decision, the brief said. That would erase precedent BLM and the environmental intervenors disagree with without forcing the court to rule on the Obama regulation that is likely to change.
BLM plans to publish a Federal Register notice June 13 that kicks off a formal process to suspend, revise or rescind the rule.
"We've come to expect the Trump administration's eagerness to sacrifice our public lands and public health for the benefit of Big Oil," Earthjustice attorney Mike Freeman said in an email. "The administration's arguments are just as meritless now as they were when BLM announced its reversal in March."
The government's Friday filing was 11 days ahead of its deadline, speeding up the briefing schedule for the other parties in the case. Opponents of the fracking rule — Wyoming, Colorado, North Dakota, Utah, the Western Energy Alliance, the Independent Petroleum Association of America and the Ute Indian Tribe — have until June 5 to file their response. Environmental groups' response is due the same day.
https://www.eenews.net/energywire/2017/05/08/stories/1060054178
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Who's Watching the Oil and Gas Industry in California?
May 8, 2017 | Environmental Working Group
By Bill Allayaud
California's well-earned reputation as the nation's greenest state, with cutting-edge policies mandate fuel efficiency and renewable energy, hides a surprising fact: California also produces the third-most oil in the country. The state's petroleum industry is regulated by an obscure agency called the Division of Oil, Gas and Geothermal Resources, or DOGGR. For much of its history, DOGGR answered faithfully to Chevron and Exxon, but paid little mind to protecting drinking water, crops or communities from pollution by the array of toxic chemicals used in and produced by oil and gas operations.
Statewide, some 90,000 oil and gas wells are actively pumping, and many of them are right where people live. Last month, Southern California Public Radio reported that DOGGR data show that in Los Angeles, approximately 90 percent of the city's oil wells are within 2,500-foot of homes, schools, parks, medical facilities and other public places.
In the last five years, EWG's California office revealed the dysfunction at DOGGR, and helped protect the state’s surface and groundwater resources from oil drilling. This led to California’s adoption of the strongest fracking regulation in the country. Here are some highlights:
Fracking
Fracking, the injection of chemical-laced water deep underground to free up oil and gas deposits, has been deployed in the Los Angeles area as far back as 1953. Today, half a million Californians live within a mile of a fracked well and fracking is used to produce about one-fifth of oil in the state. But only in the last few years, as the fracking boom spread nationwide, has the danger that fracking chemicals pose to groundwater and drinking water become widely known.
For years, DOGGR publicly denied that there was any fracking in California – until 2012, when EWG presented evidence that thousands of wells have been fracked in at least six counties: Kern, Los Angeles, Monterey, Sacramento, Santa Barbara and Ventura. This revelation focused the legislature’s attention on this agency that had grown accustomed to operating out of the public eye.
In 2013, landmark legislation mandating the regulation of fracking was signed into state law, making California the only state to require comprehensive chemical testing of drilling waste and public disclosure of the results. Our reports and advocacy in the capital were instrumental in getting this law across the finish line. But we didn't stop there.
Reviewing the data made available under the new law, EWG’s 2015 investigation revealed just how toxic fracking wastewater is. In addition to the known carcinogen benzene, tests of wastewater samples found chromium-6, lead and arsenic – all listed under California’s Proposition 65 as causes of cancer or reproductive harm – in one-third to half of the samples. The wastewater also carried, on average, thousands of times more radioactive radium than the state’s public health goal.
A follow-up report assessed the human and environmental health impacts of the fracking chemicals used between 2013 and 2015. Almost 200 distinct chemicals were injected into nearly 700 oil wells, revealing the likely origin of some contaminants in the wastewater and also the array of hazardous chemicals used, stored or transported at fracking sites. These chemicals have the potential to endanger the health of oilfield workers and people who live or work nearby, and could contaminate drinking water in the underlying aquifers.
Underground Injection of Oil and Gas Wastewater Pollutes Aquifers
In 2012, investigations by EWG and other environmental advocates exposed that on the sly, DOGGR had been allowing the injection of billions of gallons of drilling wastewater into underground sources of water that could be used for domestic or agricultural purposes. This revelation led to the resignation of the director of the state Department of Conservation, which oversees DOGGR.But the illegal injection practice continued. In 2013, fracking and other oil and gas drilling operations in California produced more than 130 billion gallons of wastewater, injected into thousands of underground wells. Finally, in July 2014, the state ordered an emergency shutdown of 11 injection wells in Kern County, because of the risk of drinking water contamination. The next year, a dozen more wells were shut down.
This public embarrassment for state government resulted in a renewed and stronger role for the state’s water quality enforcement agency, the Water Resources Control Board, and its regional counterparts. The new California fracking law thrust the Water Board directly into the fray. Since 2014, the Water Board oversees potential impacts of fracking on groundwater.
As of 2017, nearly 500 wastewater injection wells have been shut down. Yet, DOGGR continues to allow injection into more than 1,650 wells across the state, and much more work needs to be done to protect California’s water resources from oil and gas wastewater.
Oil Wastewater on Food Crops?
In California’s Central Valley, the state's agricultural heartland, there are approximately 900 open pits that are used to dispose of billions of gallons of water from fracked wells and oil production. This wastewater percolates into the ground, polluting the underlying aquifer, and evaporates into the air, making the already dirty air in areas such as Kern County even worse. Groundwater wells can be contaminated, harming nearby farming operations.
EWG's investigations pushed the Central Valley Regional Water Quality Control Board to inventory all the oil wastewater disposal pits in Kern County. The results were startling. About one-third of the ponds had never received state operating permits. Just as DOGGR had turned a blind eye to extensive fracking in Kern County for decades, the Central Valley Water Board had casually allowed billions of gallons of often toxic wastewater to be dumped into open pits.
Oil production wastewater has also been used for watering food crops without any analysis of potential impacts on public health. Our investigation found that between 2014 and 2016, more than 95,000 acres of food crops were irrigated with billions of gallons of oil field wastewater. Contaminants in the wastewater included 16 chemicals the state classifies as cancer causing or reproductive toxicants.
The Central Valley Water Board established an expert panel to evaluate the safety of food irrigated with oil field wastewater. But more than a year later, the panel has still has not adequately addressed the lack of information on the practice. Questions remain about the chemicals used in the oilfields that produce the wastewater, inadequate water quality monitoring, limited food testing and unknown long-term impacts. EWG maintains that no further permits should be issued for spraying wastewater on food crops and that existing permits should be revoked until the practice is proven safe.
What’s next?
Our fight to protect food and water from oil and gas production continues. If the oil price per barrel moves toward $100 again, you can be sure that the oil and gas industry will be looking to expand farther, bringing more wells in proximity to homes and fields. Below are things to watch for in 2017 and beyond:California must require full disclosure of chemicals used in oil and gas wells for the entire time a well is operated.The Central Valley Regional Water Quality Control Board and its Food Safety Panel will hold hearings on the risks posed by oil field wastewater ponds to the safety of food crops. We'll be there, helping safeguard California’s food supply.The safety of oil refineries and the permanent closure of abandoned wells remain issues that must be addressed.
http://www.ewg.org/enviroblog/2017/05/whos-watching-oil-and-gas-industry-california
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Can The Supreme Court Stay Be Lifted? Does It Matter?
May 8, 2017 | E&E Energywire
By Ellen M. Gilmer
Federal judges' consideration of how to handle a legal battle over the Clean Power Plan as the Trump administration unwinds the rule has lawyers from both sides puzzling over a thorny procedural issue with uncertain implications: Could the court's approach end an existing Supreme Court order freezing the rule? And if so, would it matter?
The questions revolve around the U.S. Court of Appeals for the District of Columbia Circuit's recent order temporarily freezing litigation over the Obama-era climate rule. The court late last month paused the case for 60 days and directed both sides to make arguments for whether it should keep the case on hold indefinitely or close it and remand the issue to U.S. EPA (Energywire, May 1).
Neither option will keep the Trump administration from continuing its efforts to unravel the Clean Power Plan, but many lawyers believe the second path — remand — could eventually trigger an end to the Supreme Court stay that has prevented the Clean Power Plan from taking effect since February 2016.
That's because the high court's stay is worded to follow the course of the litigation. The order freezes the rule "pending disposition" of the case at the D.C. Circuit and until the justices have a chance to consider anticipated appeals of that decision. It was issued well before anyone knew Donald Trump would take the White House, put the Clean Power Plan on the chopping block and send the legal battle off course.
While lawyers on both sides acknowledge that the case has taken an unpredictable path, they disagree over exactly how a remand decision would affect the stay.
"On the one hand, people have said that if the rule is remanded, then there's no longer a pending case, and so the Supreme Court no longer has jurisdiction and the stay would automatically be dissolved," said Bracewell LLP partner Jeff Holmstead, a former EPA air official in the George W. Bush administration. "So that's one theory of what would happen.
"The other theory I've heard is because the Supreme Court has made it very clear in its order that it believed the rule should be stayed until the Supreme Court reaches a final resolution of it, it might somehow retain jurisdiction to keep the stay in effect," he added.
Court watchers have grappled with the two theories and reached divergent conclusions over the past week. The question of whether lifting the stay would make any meaningful difference is even more contentious, though all sides acknowledge that a stealth revival of the Clean Power Plan is unlikely.
"I have a hard time believing that somehow the Clean Power Plan is going to come back to life and come back to bite everybody because people haven't acted quickly enough," said Dorsey & Whitney attorney Jim Rubin, formerly of the Justice Department. "There are plenty of ways EPA can stop that from happening."Lifting the stay
To environmental groups that have intervened in the litigation to defend the Clean Power Plan, the impacts of a D.C. Circuit decision to remand the case are clear.
"Our view remains that the stay, which was highly unusual, was by its very terms intended to hold things in place while the court adjudicated the merits of the Obama plan," Natural Resources Defense Council attorney David Doniger told E&E News after the latest D.C. Circuit order. "Remand ... would end the case, and that would end the stay."
Doniger and others say the alternative — keeping the stay in place indefinitely while EPA works on rescinding the Clean Power Plan — would be wildly unfair. They argued in briefs to the D.C. Circuit last month that the court "should not allow EPA to convert a limited stay pending judicial review into a long-term suspension of the Rule without judicial review" (Energywire, April 7).
On the flip side, critics of the Clean Power Plan say termination of the Supreme Court stay while EPA is rethinking the rule would be both unfair and illogical. While the five-justice majority did not lay out its reasons for granting the stay last year, rule challengers say the order signaled that the majority, at least on initial review, saw the Obama administration's plan as likely illegal.
"They're going to lift the stay so this rule goes into effect, really?" said BakerHostetler attorney David Rivkin, who represents Oklahoma against the rule. "That's absurd."
More fundamentally, Rivkin disputes the theory that a D.C. Circuit decision to remand would affect the stay at all. He says ending the litigation would not actually count as "disposition" under the terms of the Supreme Court order.
"This case will not be disposed of by the remand," he said. "That is not what remand means. ... The specific docket may be closed, but the case is not closed in a sense that there was a legal challenge to the rule. The rule remains alive and well — it exists until it's supplanted by a new rule.
"Only the Supreme Court can lift its own stays," he added.
Several industry lawyers expressed less certainty than Rivkin on the matter. Bracewell's Holmstead acknowledged termination of the stay as a possibility but said "it would be kind of odd if the D.C. Circuit could put the rule back into effect by remanding it."
Rubin, of Dorsey & Whitney, said, "I think the stay would dissolve if this case is remanded and nobody does anything with it."Procedural hurdle
Environmental lawyer Sean Donahue — who is representing a coalition of groups in the litigation and noted that they have not yet decided any next steps — said it's possible an attempt to lift the stay would face a procedural hurdle.
"An order disposing of the case by remanding it would mean that the case is no longer pending," he said. "By its terms, the Supreme Court stay would remain in effect only until such time as a cert petition was either filed and finally disposed of or the time for review expires."
In other words, because the Supreme Court's order envisions one side petitioning the court for certiorari to review a D.C. Circuit decision, there's a possibility the Supreme Court will have to handle such a petition before the stay can be dissolved.
But without a merits decision from the D.C. Circuit, anyone seeking Supreme Court action could be in the unusual position of appealing the court's potential remand order — a procedural move the justices would not typically weigh in on.
"An order remanding the case is a final order that you could seek cert from, theoretically, so that may come into play," Donahue said. "But I don't think that there would be a serious issue of law for cert if the tenor of this remand were, 'We have a new administration that wants to revisit this rule; we're going to send it back to them.' That's not normally something the Supreme Court would get involved in."
If the cert issue does come into play, the timeline could look something like this: The D.C. Circuit could remand the case to EPA this summer, litigants would have 90 days to seek review at the Supreme Court, and the justices would likely handle the request in the fall. Some sources suggested the Supreme Court could use that process to clarify the terms of the stay and potentially extend it.Does it matter?
Several Clean Power Plan opponents see all that legal maneuvering as a pointless exercise.
"This is all procedural wrangling without practical consequences," Rivkin said.
Holmstead argued that even if the stay were lifted, states and industry would have assurance that EPA would take action to prevent the rule from taking effect.
"From my time at EPA, I know that they would quickly take steps to clarify that no one needs to worry about doing anything to comply," he said. "EPA could easily stay the rule administratively for 90 days and then do a quick rulemaking to suspend the compliance deadlines until they take action to revoke or revise the rule. I just don't think having the Supreme Court stay lifted would be a big deal."
Rubin agreed, noting that EPA will likely continue to move quickly to roll back the Clean Power Plan.
President Trump's March 28 "energy independence" executive order requires the agency to review the rule, and EPA Administrator Scott Pruitt signed a Federal Register notice announcing its review the same day. Two days later, Pruitt wrote in a letter to governors that states "have no obligation to spend resources to comply" with the Clean Power Plan, citing the Supreme Court stay.
To supporters of the rule, the implications of lifting the stay are both practical and symbolic. Some think it could stop EPA from dragging its feet on a new rulemaking process — allowing anticipated challenges to the Trump administration's final decision to get in front of a court sooner.
Doniger said last week that it "would not allow them to hide behind this Supreme Court stay which has been transformed way beyond its original intentions."
The length of the Supreme Court stay could also affect eventual compliance dates if the rule were ever resurrected by a court or a future administration. Pruitt's letter to governors noted that EPA "supports the application of day-to-day tolling," the practice of extending compliance dates for the length of time a regulation is paused.
The day-to-day tolling approach, which environmental groups would oppose, would mean that if the stay continues for several years and the Clean Power Plan somehow comes back to life, its compliance dates would be bumped years into the future.In the meantime
Litigants on all sides will continue grappling with those scenarios as they hone their playbooks for future action in the battle over the Clean Power Plan.
In the short term, they have a simpler question to answer: Should the D.C. Circuit remand the case to EPA or hold it in abeyance?
Supporters of the rule are still weighing their options but are holding out hope that the court will reject both paths and instead issue a decision on the major legal issues in the case.
Their position suffered a blow last week when the D.C. Circuit declined to reconsider a net neutrality case, and two Democratic appointees wrote that review would be "unwarranted," as the court "could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."
Challengers of the Clean Power Plan, meanwhile, may lean toward abeyance to preserve the litigation in case the Trump administration is unable to deliver the broad rollback it has promised.
"If, for whatever reason, they were to change their minds and not revoke or revise the Clean Power Plan, then you would immediately be able to pick up the case where it left off," Holmstead said.
It's unclear what position EPA will take, but the agency is expected to outline its efforts to rethink the rule.
"You have 10 judges, and obviously they're having a hard time figuring out what they ought to do in the case anyway," Rubin said. "They've asked for ideas on this because I think they'd like to know what the parties' equities are here, and particularly, I think, they're anxious to know what EPA's planning on doing."
Briefs are due next Monday.
https://www.eenews.net/energywire/2017/05/08/stories/1060054177
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AASHTO, NRC Highlight Rail Benefits Under Omnibus Bill
May 8, 2017 | Progressive Railroading
The $1.1 trillion spending bill passed by Congress last week provided funding for
Amtrak, rail and transit programs, and $500 million for the U.S. Department of Transportation's Transportation Investment Generating Economic Recovery (TIGER) program.
The bill was approved and signed by President Donald Trump to continue funding the federal government through Sept. 30, which is the end of fiscal-year 2017.
The measure allows state departments of transportation and transit agencies to gain access to this year's scheduled funding increases that Congress had authorized and paid for under the 2015 Fixing America's Surface Transportation (FAST) Act. Those increases totaled about $400 million for transit programs and $1 billion for highway programs, which have been delayed since Oct. 1, the start of this budget year, according to the American Association of State Highway and Transportation Officials (AASHTO) Journal.
According to a Senate committee summary, the bill provides:
• $1.85 billion for the Federal Railroad Administration, a $173 million increase above the FY2016 enacted level. The bill includes $98 million in rail grants to support positive train control (PTC) implementation, make rail infrastructure improvements and restore or enhance passenger-rail service. Amtrak will receive $328 million for the Northeast Corridor and $1.17 billion for its national network. Additionally, $258 million will go toward rail safety and research programs.
• $12.4 billion for the Federal Transit Administration, including $9.7 billion for transit formula grants from the Highway Trust Fund. The measure provides $2.4 billion for Capital Investment Grants known as "New Starts"; fully funds all current Full Funding Grant Agreement (FFGA) transit projects; and supports new projects anticipated to receive FFGA awards.
• $3 million for the National Surface Transportation and Innovative Finance Bureau, created by the FAST Act to consolidate several USDOT programs including TIFIA, RRIF and FASTLANE grants.
The bill is "generally good news for the rail industry and rail contractors," according to a legislative alert from the National Railroad Construction & Maintenance Association (NRC).
NRC reported that, in addition to continuing to funding all existing transit projects with existing FFGAs, the following projects could receive funding if they are able to sign new FFGAs: Maryland Purple Line, $125 million; Caltrain electrification, $100 million; Seattle's Lynnwood Link, $100 million; New York City Transit's Canarsie power improvements, $84 million; the streetcar program in Santa Ana, Calif., $50 million; Dallas Area Rapid Transit's core capacity project, $49 million; and the Minneapolis Southwest light-rail transit project, $10 million.
Moreover, the legislation sets aside $408 million for 10 "small start" projects, NRC reported. Among those projects are four new streetcars in Tempe, Ariz., $50 million; Sacramento, Calif., $50 million; Fort Lauderdale, Fla., $11 million; and Seattle, $50 million.
NRC's report also noted that the bill provided another $150 million in funding for the Washington Metropolitan Area Transit Authority; and $199 million for PTC funding for commuter railroads that was authorized under the FAST Act.http://www.progressiverailroading.com/federal_legislation_regulation/news/AASHTO-NRC-highlight-rail-benefits-under-omnibus-bill--51564
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Investors, Key GOP Lawmaker Warn Again Reneging On Paris
May 8, 2017 | E&E Climatewire
By Evan Lehmann
More than 200 large investors are urging world leaders to keep their promises enshrined in the Paris Agreement as President Trump prepares to make a decision about potentially withdrawing the U.S. from the global pact.
Having more than $15 trillion in assets, the investors said in a letter released this morning that it's "vital" for countries worldwide to finance efforts to tackle climate change. The letter comes one day before Trump's Cabinet and top advisers will meet to discuss whether the U.S. should remain a party to the deal. It also comes as the wealthiest nations prepare to meet at the end of this month and then in July for the Group of Seven and Group of 20 summits.
"Investors believe it is vital that the governments of G7 and G20 nations continue to publicly express their commitment to support climate finance to both mitigate and adapt to the effects of climate change," the letter says. "It is imperative that the public and private sectors work closely together to get the signalling and incentives right to shift the trillions of capital required across the global economy."
The letter is part of a last-minute campaign among supporters of the Paris Agreement to persuade Trump to stay in the accord. Yesterday Rep. Kevin Cramer (R-N.D.) wrote an op-ed in The Wall Street Journal making the case to stay in the deal with revised emissions targets.
Cramer, who served as Trump's energy adviser during the transition, declared that "in future climate talks the U.S. will benefit from having Mr. Trump, an experienced negotiator, at the table." He also argued that renegotiating the accord struck by nearly 200 nations "would be the easiest deal Mr. Trump has ever made." The president, he said, can merely reduce the U.S. emissions target and use the U.S. seat at the table to fight a "radical and unrealistic all-renewables vision for global energy policy."
The investors, meanwhile, argue that if the U.S. pulls out, other nations might weaken the commitments they made to reduce greenhouse gases in the accord. The Trump administration is considering diluting the United States' pledge to cut emissions 26 to 28 percent under 2005 levels by 2025. Another option would be to quit the agreement altogether.
"Investors are sending a powerful signal today that climate change action must be an urgent priority in the G-20 countries, especially the United States, whose commitment is in question," said Mindy Lubber, CEO of Ceres, a nonprofit focused on sustainability that helped organize the letter. "Global investors are eager to open their wallets to a low-carbon future, but it won't happen without clear, stable policy signals from countries worldwide — in particular, the U.S. government, whose waffling on the Paris climate agreement is hugely troubling."
https://www.eenews.net/climatewire/2017/05/08/stories/1060054160
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Only 7 U.S. Diplomats Are At U.N. Climate Talks This Week
May 8, 2017 | E&E Climatewire
By Jean Chemnick
A skeleton crew will represent the United States at U.N. climate talks that begin today in Bonn, Germany.
The seven U.S. civil servants who will participate in the two-week session are short on marching orders as well as personnel. Two years ago, the United States sent 45 people to the same type of midyear negotiating session. About 97 people traveled as part of the official U.S. delegation to the 2015 Paris summit, where they helped deliver a global accord.
This week, the tiny team will have the unenviable task of explaining President Trump's climate change policies to an anxious world.
"They will be expected to explain the administration's policy, which rules will be retained and which rescinded, the impact of these changes on the U.S. target, whether any international finance will be forthcoming, and, of course, whether the U.S. will remain in the Paris Agreement," said Christo Artusio, a former director of the State Department's Office of Global Change.
He said his former colleagues "will be in a rough position."
The White House has promised a decision on whether or not the United States will remain a party to the Paris Agreement by the time Trump travels to Sicily late this month for the Group of Seven leaders' summit. But top administration officials are expected to hold their third major internal debate on the issue tomorrow, and there's a chance a ruling could come as early as this week.
The G-7 group of major economies is powerfully in favor of the Paris Agreement. It's likely that the Trump team will warn its G-7 partners of its decision during a "sherpa" meeting on May 15 and 16 rather than unveiling it in Sicily, where it would eclipse other issues on the group's agenda.
Should Trump decide to "cancel" the Paris deal as he promised in the campaign, and should that news leak out while thousands of diplomats and activists who have dedicated their lives to fighting climate change are meeting in Bonn, environmentalists are ready with their spin. A withdrawal, they insist, will do more harm to the United States than to the Paris Agreement.
"If the U.S. decides to leave the agreement, this will be unwelcome, I think, by everybody," said Paula Caballero, global director of the World Resources Institute climate program.
But Caballero said climate leadership has become "diffuse and decisive" in recent years, and now no longer depends on a proactive United States wrangling recalcitrant international partners.
The meeting in Bonn seeks to make progress on the Paris Agreement's rulebook, including ensuring that countries are transparent as they implement their emissions targets. Technical experts will meet, and 27 other countries will join the United States in having progress toward their pre-2020 emissions reduction targets scrutinized in an open forum.
"Despite the political unknowns around the climate talks, in Bonn, negotiators have real opportunity to advance implementation of the Paris Agreement," added Yamide Dagnet of WRI.
Of course, none of this will be the news out of Bonn if Trump announces a Paris exit in the middle of the talks.
"It's like rearranging deck chairs on the Titanic," one source predicted.
The U.S. team will be led by Deputy Special Envoy for Climate Change Trigg Talley and includes six State Department officials. The State Department roster includes Andrew Rakestraw, from the Office of Global Change, a co-facilitator on negotiations on the transparency provisions; Kimberly Carnahan; Jennifer Austin; Andrew Neustaetter; and Meredith Ryder-Rude.
The team is small even by off-year standards. The United Kingdom's government, for example, is sending 26 participants to the meeting. It is unclear whether the Trump administration approved so few civil servants because it is hostile to the Paris Agreement and the underlying framework or because it is paring down its commitment to multilateral processes more generally.
Correction: An earlier version of this story incorrectly reported that a representative from the White House Council on Environmental Quality would attend the meeting. No one from the White House will be there.
https://www.eenews.net/climatewire/2017/05/08/stories/1060054180
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Incoming Climate Summit Chair Ready To 'Defend And Uphold' Paris Deal
May 8, 2017 | PoliticoPro
By Kalina Oroschakoff
BONN, Germany — Fiji, the island nation chairing this year’s U.N. climate change summit, will make it a priority to move ahead with implementing the Paris agreement — with or without the U.S., its chief climate negotiator said today.
“Our number one priority is to build a grand coalition … to defend and uphold the Paris agreement,” Ambassador Nazhat Shameem-Khan told reporters at the Bonn climate change conference, where countries are meeting to prepare for the COP23 summit.
“We believe in multilateralism,” she said when asked about the potential effects of a U.S. withdrawal. “Irrespective of the position of individual countries, it is very important that we continue move this process forward.”
Shameem-Khan’s views were echoed by Patricia Espinosa, the executive secretary of the United Nations Framework Convention on Climate Change, who urged negotiators to focus on agreeing to the technical rules needed to fulfill the Paris agreement’s goals.
Country representatives agreed at last year’s Marrakech climate summit to finalize the rulebook in 2018, the same year countries will hold a first global assessment of their efforts to fight climate change. “There is not much time, we really need to make progress,” Espinosa said.
EU negotiator Yvon Slingenberg also stressed the time factor, regardless of what the U.S. decides to do. “2017 is a crucial year,” she said. “We have had the Paris agreement — historical achievement — but now it’s about practical implementation.”
Negotiations so far look promising, she added. “The mood is positive, and we’ve got off on a constructive start.”
https://www.politicopro.com/energy/whiteboard
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Perez Jabs Trump’s ‘Aggressive Stupidity’ On Environment
May 8, 2017 | The Hill - E2 Wire
By Mark Hensch
Democratic National Committee (DNC) Chairman Tom Perez on Monday accused President Trump of “aggressive stupidity” on the environment.
“There’s a name for Donald Trump’s environmental policy: aggressive stupidity,” Perez said in a statement. "The scientists he just fired have been working on nothing more political than making sure our water is safe to drink and our air is safe to breathe.
“By turning them into political targets, Trump is proving yet again that he doesn’t care about ordinary people.”
The Environmental Protection Agency (EPA) reportedly dismissed at least five members of one of its scientific review boards Sunday.
A spokesman said EPA Administrator Scott Pruitt is considering replacing the scientists with representatives of industries whose pollution the agency regulates.
“The administrator believes that we should have people on this board who understand the impact of regulations on the regulated community,” J. P. Freire said.
Sunday’s move is the latest in a series of controversial actions by the EPA in recent weeks.
The Washington Post reported on Saturday that the EPA has buried a climate change website intended for children.
The EPA last month also proposed closing a regional office as part of an administrative restructuring of the agency's Region 5, which covers Indiana, Michigan, Minnesota, Ohio and Wisconsin.
http://thehill.com/policy/energy-environment/332373-perez-jabs-trumps-aggressive-stupidity-on-environment
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