Preview Newsletter
ACC AM 5/16/2017
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(ACC Mentioned) Staffer Shuffle
May 16, 2017 | Roll Call
By Alex Gangitano
... Jon Corley, press secretary to Rep. Mac Thornberry, R-Texas, will be leaving his post on May 25 to be director of issue and advocacy communication at the American Chemistry Council. -
Senate Committee Likely to OK Six Regulatory Process Bills
May 16, 2017 | BNA Daily Environment Report
By Cheryl Bolen
Six bills that would alter in ways large and small the regulatory process are set to be marked up May 17 by the Senate Homeland Security and Governmental Affairs Committee, and all are expected to be approved. -
(ACC Mentioned) EPA Pesticides Office Considers GHS Labeling To Advance CompTox Use
May 16, 2017 | Inside EPA
By Maria Hegstad
EPA's pesticides office is considering adoption of an international labeling protocol for pesticide products, a move that is intended to make it easier for the agency to adopt new non-animal toxicity testing methods -- an effort usually cheered by industry though in this instance, pesticide manufacturers are raising concerns about the move. -
Practitioner Insights: California Crowdsources Chemical Rules: What Could Go Wrong?
May 16, 2017 | BNA Daily Environment Report
By Maureen Gorsen and Clynton Namuo
Environmental and product regulations, traditionally a science-obsessed and labyrinthine area of the law dominated by experts in administrative agencies, will receive an internet-age overhaul to make them more accessible to the masses as new California laws take shape. -
Nanoscale Materials Data Collection Rule Guidance Coming
May 16, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Draft EPA guidance to help companies making and processing nanoengineered chemicals understand how to comply with a final rule requiring them to submit existing production, use and other information will be issued for comment May 16, according to an advance copy of the Environmental Protection Agency notice. -
EPA's Draft Nano Rule Guide Appears Unlikely To Prevent Industry Lawsuit
May 15, 2017 | Inside EPA
By Dave Reynolds
EPA is floating draft guidance clarifying its final nanomaterials reporting rule, including definitions of reportable and exempt materials, though the draft appears unlikely to prevent a lawsuit from nanomaterials producers and users over their claims that the final rule unlawfully failed to give them a chance to weigh in on the definitions. -
US EPA Consults On Nano Reporting Rule Guidance
May 16, 2017 | Chemical Watch
The US EPA has issued for consultation draft guidance for its nanoscale reporting rule. -
Oregon County To Vote On Blocking Natural Gas Terminal
May 16, 2017 | Reuters
By Tom James
A coastal Oregon county will vote Tuesday on a ballot measure to block a proposed natural gas terminal, the latest in a series of efforts to thwart energy projects across the Pacific Northwest. -
EPA Wants Clean Power Plan Lawsuits Paused Indefinitely
May 16, 2017 | BNA Daily Environment Report
By Andrew Childers
Freezing legal challenges to the carbon dioxide standards for power plants would allow for a faster review of the rule than sending it back to the EPA for reconsideration, the agency told a federal appellate court. -
Supreme Court Stay Factors Into Litigation's Future
May 15, 2017 | E&E News PM
By Amanda Reilly
The Trump administration asked a federal court today to indefinitely suspend lawsuits over the Clean Power Plan rather than send the litigation back to U.S. EPA. -
China Eyes U.S. Energy After $20 Billion ‘Belt, Road’ Deals
May 16, 2017 | BNA Daily Environment Report
By Tom Mackenzie and Sarah Chen
China is setting its sights on U.S. energy as a growing reliance on imports forces it to look beyond traditional suppliers, according to the head of the country's biggest oil and gas company. -
Mindful Of CPP Stay, Groups Spar Over Possible D.C. Circuit Rule Remand
May 15, 2017 | Inside EPA
By Lee Logan
Supporters and opponents of EPA's power sector greenhouse gas rules are clashing over whether a federal appellate court should pause litigation over the rules or remand them to the agency as it mulls whether to revise or rescind the regulations, a question that could determine whether the Supreme Court's stay of the rule remains in place. -
U.S. Senators Push For Appalachian Ethane Storage Hub Study
May 16, 2017 | Natural Gas Intelligence
By Jamison Cocklin
U.S. Sen. Shelley Moore Capito (R-WV) has introduced a bill that would require federal agencies to study the feasibility of an underground ethane storage and distribution hub in the Appalachian Basin. -
AGA Says No Natural Gas Utilities Hit by WannaCry Cyberattack
May 15, 2017 | Natural Gas Intelligence
By Charlie Passut
The American Gas Association (AGA) said no natural gas utilities have been compromised by WannaCry ransomware, a cyberattack that has affected computer systems and caused mayhem worldwide. -
Trump Infrastructure Vision Expected in Weeks: Chao
May 16, 2017 | BNA Daily Environment Report
By Shaun Courtney
The outlines of a Trump administration infrastructure plan will be released in the next “several weeks,” Transportation Secretary Elaine Chao told an Infrastructure Week gathering May 15 at the U.S. Chamber of Commerce. -
Freight Rail Is A Key To The U.S. Economy, Infrastructure
May 16, 2017 | Herald and News
By Ian Jefferies
With spending levels set through September, the Senate digging in on health care and the U.S. House of Representatives now turning to tax reform, some may believe infrastructure will take a backseat to these priorities. Yet observers of the legislative process know that policymaking is always occurring, even if it is not always in plain sight. -
(ACC Mentioned) Scorned Law May Be Environmentalists’ Tool to Protect EPA Data
May 16, 2017 | BNA Daily Environment Report
By Rachel Leven
A law long scorned by environmentalists may now be a tool for protecting information on the EPA's website as the Trump administration purges references to climate change. -
China Likely to Fill Some, But Not All, of U.S. Climate Vacuum
May 16, 2017 | BNA Daily Environment Report
By Dean Scott
Those looking for a silver lining on climate change after the November election offered a ready answer for what a Trump administration retreat would bring: China rushing into the breach to fill the vacuum of climate leadership. -
Chamber Appeals GHG Cap-and-Trade Ruling To State High Court
May 15, 2017 | Inside EPA
The California Chamber of Commerce is asking the state's high court to review a recent appellate court ruling that upheld the state's greenhouse gas allowance auctions under cap-and-trade, saying that if allowed to stand the ruling “would mark a revolution in the established law governing taxation in this state . . .” -
Lawmakers In Sync With Trump Zero In On Social Cost Of Carbon
May 16, 2017 | E&E Daily
By Arianna Skibell
Key Republican senators on the Environment and Public Works Committee are weighing in on President Trump's deregulatory agenda and asking U.S. EPA to pay special attention to climate rules.
Industry and Association News
LCSA News - There are no clips to report at this time.
Chemical Management News
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Chemical Security News
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Environment News
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(ACC Mentioned) Staffer Shuffle
May 16, 2017 | Roll Call
By Alex Gangitano
Business advocacy firm the Rotunda Group announced Mike Biagi is joining as a partner in June. Biagi has been the executive director of the Republican Party of Kentucky since 2015.
Jon Corley, press secretary to Rep. Mac Thornberry, R-Texas, will be leaving his post on May 25 to be director of issue and advocacy communication at the American Chemistry Council. Jordan Hunter, currently a staff assistant, will lead Thornberry’s press shop.
http://www.rollcall.com/news/hoh/word-hill-laura-bush-gets-women-making-history-award
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Senate Committee Likely to OK Six Regulatory Process Bills
May 16, 2017 | BNA Daily Environment Report
By Cheryl Bolen
Six bills that would alter in ways large and small the regulatory process are set to be marked up May 17 by the Senate Homeland Security and Governmental Affairs Committee, and all are expected to be approved.
The committee in the past often didn't bother to mark up regulatory bills that had drawn veto threats from former President Barack Obama. Now, with President Donald Trump in strong support of regulatory overhaul, these measures stand at least a chance of becoming law.
Standing out in the crowd is the Regulatory Accountability Act (S. 951), introduced in April with bipartisan support from Sens. Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.). The bill is the U.S. Chamber of Commerce's highest legislative priority in the area of regulation.
Other measures, such as the Regulations from the Executive in Need of Scrutiny (REINS) Act (S. 21), are partisan bills strongly opposed by Democrats. These bills are likely to draw threats of a filibuster on the Senate floor.
Eyes on RAA
The RAA would require regulatory agencies issuing major rules, including independent commissions, to consider a reasonable number of regulatory alternatives, said Paul Noe, vice president for public policy at the American Forest and Paper Association, in a statement supporting the bill.
Then, the bill would require agencies to select the regulatory alternative that has benefits which justify the costs and that is the “most cost-effective” rule, unless “the additional benefits of the more costly rule justify the additional costs of that rule,” Noe said.
The bill also would require regulations to be based on the best reasonably available scientific, technical or economic information, Noe said.
“These common sense requirements would ensure that any major regulatory actions—including deregulation (which must proceed through rulemaking)—would enhance societal well-being,” Noe said.
Amendments Likely
All six regulatory bills are expected to be approved by the committee, said Sam Batkins, director of regulatory policy at the American Action Forum. But the RAA is the “headliner,” in large part because it is bipartisan and the most likely to advance further, he told Bloomberg BNA.
Sen. Joe Manchin (W.Va.) is the second Democratic co-sponsor of the bill along with Heitkamp. Assuming all 52 Republicans in the Senate supported the bill, just six Democrats would be needed to break a filibuster and pass the legislation.
Although Trump has not specifically endorsed the bill, the president is unlikely to veto a bill that aims to modernize regulation and place more scrutiny on big, high-impact rules, Batkins said.
The bill may end up being amended, because both Portman and Heitkamp genuinely want the bill to get 60 votes, Batkins said. Unlike the more partisan regulatory bills, the House is likely to pass whatever version of the RAA the Senate does, he said.
“The only question is where they find the other six Democrats,” Batkins said. “So, to the extent they need to take on amendments that still keep the spirit of the bill, but gets them closer to 60 votes, there probably will be amendments.”
Other Bills on Tap
In addition to the RAA and the REINS Act, the committee is set to consider:
• The Midnight Rules Relief Act (S. 34) to allow multiple rules to be repealed under one Congressional Review Act resolution of disapproval.
• The Providing Accountability Through Transparency Act (S. 577) to require a 100-word, plain-language summary of proposed regulations.
• The Small Business Regulatory Flexibility Improvements Act (S. 584) to modify the procedures for participation by small entities in the promulgation of a proposed rule.
• The Early Participation in Regulations Act (S. 579) to require agencies to publish advance notice of proposed rulemaking at least 90 days before any rulemaking.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721525&vname=dennotallissues&fn=111721525&jd=111721525
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(ACC Mentioned) EPA Pesticides Office Considers GHS Labeling To Advance CompTox Use
May 16, 2017 | Inside EPA
By Maria Hegstad
EPA's pesticides office is considering adoption of an international labeling protocol for pesticide products, a move that is intended to make it easier for the agency to adopt new non-animal toxicity testing methods -- an effort usually cheered by industry though in this instance, pesticide manufacturers are raising concerns about the move.
Animal protection groups have long urged EPA to make the move, arguing that doing so would make it easier for EPA to adopt non-animal testing methods that are developed in Europe or elsewhere based on the Global Harmonisation System (GHS) labeling system. Before EPA can adopt these approaches, it must crosswalk the tests into conformance with its own pesticide labeling system, as both are based on categorizing products in certain ways. In some instances, this translation can be hard to accomplish, and its necessity can be a barrier to adopting some testing approaches.
Office of Pesticide Programs (OPP) officials told attendees at a May 3 Pesticide Program Dialogue Committee (PPDC) meeting in Arlington, VA, that a work group is considering the move, and studying its ramifications.
"We're also looking at potentially adopting the GHS categories. It's what [the European Union] and a lot of the world uses. The challenge here is adopting OECD guidelines that are in the GHS system and then we have to crosswalk to our system, which is not straightforward for some tests," OPP's Garland Waleko said.
Waleko explained that OPP directed an internal work group last year to begin considering the GHS adoption issue. "The work group has been looking at different options for GHS on labels," she said, adding that they are considering a narrow adoption of the international labeling standard by "adopting GHS for acute toxicity and physical hazard on the labels."
A handout that staff provided PPDC members explains that the work group "is exploring potential options for requiring the use of GHS language on U.S. pesticide labels for relevant physical hazards and acute toxicity hazards only. OPP is not considering chronic health hazards that would add additional label requirements, or environmental hazards . . . This would support U.S. and international regulatory harmonization efforts and accelerate OPP's ability to utilize" non-animal testing methods.
The handout identifies benefits of adopting the GHS product labeling as increasing consistency across the U.S. government since the Occupational Safety and Health Administration (OSHA) and the Transportation Department have already implemented it. GHS labeling applies to both product labels and safety data sheets that workers involved with shipping and transporting rely on to do so safely.
EPA identifies other benefits as "reduc[ing] non-tariff related barriers to trade. Harmonization across hazard labeling internationally would reduce the time and financial burden associated with regulatory compliance in a global economy" and "facilitat[ing] the use of alternative testing methodologies, tools that will enhance the quality of risk assessment and risk management decisions with significant reductions in animal testing."
GHS Labeling
But adoption of the GHS labeling system would require the laborious process of promulgating a rule. And further slowing the effort will be the complexity and cost of doing so, as described in a handout that OPP prepared for PPDC members.
"Rulemaking and the subsequent review of all product labels would require significant program resources, and result in corresponding time and cost burdens for industry and state co-regulators during the implementation phase," EPA's handout states. "Extensive internal and external outreach and training would also be needed . . . The transition period would likely be several years after a final rule was published. A complete cost-benefit assessment would be conducted as part of the rulemaking process. However, OPP is currently conducting cursory reviews of assessments from other agencies and countries to make inferences for both internal and external stakeholders."
PPDC members raised several questions for staff. One queried why EPA is considering a narrow adoption of the labeling requirements, and not including the chronic exposure hazard language GHS would include on labels. Another OPP staffer, Caitlyn Keller, explained that "We were just looking to convert what's on the label and not add additional elements."
Another PPDC member, Gabriele Ludwig of the Almond Board of California, asked "how much" the labeling change would "shift current categorization."
Anna Lowit, senior science advisor to OPP, replied that part of considering adopting GHS is a scientific analysis of what those changes would be, which has yet to be done. "The differences are not huge; there are a few differences to that, inhalation is qualitatively different," she said. "It's also realistic to think about there are tens of thousands of labels, none of that would happen overnight."
PPDC members representing pesticide manufacturers opposed the change, starting with Ray McAllister, with CropLife America, the trade association for pesticide manufacturers. "Croplife has long opposed GHS [labeling]. We have yet to find a reason to change," he said. "In light of the work you're doing now, we'll reevaluate, but I don't" think we'll change our opinion.
McAllister was seconded by PPDC members representing the American Chemistry Council's Biocides Panel and the Biopesticide Industry Alliance. Nina Wilson of the Alliance said that "the biopesticides industry might lose some of our advantage on labels."
Asked to clarify his concerns after the meeting, McAllister explained in an email that EPA's adoption of GHS for pesticide labels and safety data sheets "would eliminate the 'Caution' category for pesticide products, moving the majority of them to the 'Warning' category, implying greater hazard, though there has been no change in the product. Many state statutes and regulations regarding pesticide use incorporate and rely on the label signal words that EPA uses now. Those state statutes and regulations would have to be changed, at no small cost and effort, if GHS were adopted."
Such changes could also lead to "unnecessary confusion," McAllister worries. He also raised concerns about the differences between EPA's testing categories and those of GHS.
"Toxicity testing for GHS has different break points than testing that supports the system of signal words used by EPA," McAllister writes. "This would require wholesale retesting of products in order to avoid assigning products to an apparently more hazardous category, at considerable expense and sacrifice of laboratory animals."
Further, McAllister argues that these concerns are not outweighed by benefits of adopting the GHS system. He says that "because pesticide products must be labeled separately for each country, GHS implementation offers no benefits for cross-boundary shipment of labeled products."
'Right Move'
But another PPDC member said at the May 3 meeting that she "just feel[s] that a move toward GHS is the right move. I realize it places additional burdens [now], But I can't believe it wouldn't be advantageous eventually."
Pat Bishop, a PPDC member with People for the Ethical Treatment of Animals, also spoke in support of adopting the GHS labeling. "A lot of the alternatives are designed to work with the GHS system rather than the EPA system," she said. "From our point of view we'd like to see EPA move. I'd think from industry's standpoint having one system to deal with would be helpful as well."
Bishop also asked staff about a related issue which her group and others are supporting because it would also reduce the use of animal toxicity tests. This is a technique referred to as GHS additivity, a mathematical formula that can be used to calculate a product's toxicity using toxicity test results for the individual components. Currently, OPP requires testing of both the individual chemical ingredients and the total formulation. Using the formula would allow OPP to drop the requirement for testing the formulation.
EPA launched a voluntary pilot last December, seeking paired data from industry which staff could use to compare the results of the formula with formulation testing results. Bishop asked how many submissions EPA has received and whether PETA could help advance the effort.
Lowit replied that so far, EPA has received just one submission from Dow AgroSciences with over 200 of its products. "A number of companies keep reassuring us they are preparing a big data dump," she added.
OPP's handout states that its work group will be "seeking stakeholder input on this potential initiative throughout Fiscal Year 2017."
https://insideepa.com/daily-news/epa-pesticides-office-considers-ghs-labeling-advance-comptox-use
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Practitioner Insights: California Crowdsources Chemical Rules: What Could Go Wrong?
May 16, 2017 | BNA Daily Environment Report
By Maureen Gorsen and Clynton Namuo
Maureen Gorsen is a partner in Alston & Bird's Environment, Land Use and Natural Resources team. She focuses on enforcement defense and regulatory compliance counsel combining public policy, litigation and advocacy. She is a former general counsel of the California Environmental Protection Agency. Clynton Namuo is an associate on Alston & Bird's Environment, Land Use and Natural Resources team. He focuses his practice on environmental and land use litigation, as well as California water rights.
Environmental and product regulations, traditionally a science-obsessed and labyrinthine area of the law dominated by experts in administrative agencies, will receive an internet-age overhaul to make them more accessible to the masses as new California laws take shape.
The internet became a ubiquitous part of our lives in 1994. Now nearly 25 years later, we are watching long-standing and seemingly immutable institutions disappear and be replaced with internet-based tools and forums (e.g., newspapers replaced by social media, taxicabs replaced by Uber, retail stores replaced by Amazon.com, political parties replaced by crowdsourced candidates).
Regulation, particularly environmental and product regulation, will soon follow this de-institutionalizing and decentralizing trend and move from the province of experts in administrative agencies to crowdsourcing and apps such as Yelp as new regulations in California and the federal government take shape in 2017.These new regulations will have far-reaching consequences for businesses that sell products in California—a vital market for most every company with a nationwide reach.
Specifically, California's plaintiff-friendly Prop 65 regulations, which require businesses with 10 or more employees to provide warnings before exposing individuals to any chemical the state has determined may cause cancer or reproductive harm (also called chemicals of concern) will become more arduous in 2018 and open the door for yet more litigation. In 2015 alone, businesses paid more than $26 million to settle Prop 65 cases and an additional $17.8 million in attorneys’ fees.
The Prop 65 overhaul dovetails with updated regulations under California's Safer Consumer Products law, which regulates how products are made and what choices manufacturers make along the entire global supply chain, and a major update to the federal Toxic Substances Control Act (TSCA), which will give the Environmental Protection Agency sweeping powers to identify and regulate harmful chemicals contained within products. Neither California regulatory disclosure scheme will be pre-empted by TSCA.
Yet both will bring a new level of web-based disclosure of information about products sold in California that heretofore had been private information or information shared only with regulators, not the general public.
California Prop 65 Goes Online
Prop 65, officially called the Safe Drinking Water and Toxic Enforcement Act of 1986 but more commonly known by the number of the ballot initiative that made it law, requires businesses to provide warnings before exposing individuals to any chemical the state has determined may cause cancer or reproductive harm unless the business can show that the exposure poses no significant health risk. The state maintains a list of more than 900 chemicals that, as of January 2017, includes chemicals present in everything from household goods to building materials to alcoholic beverages.
Prop 65 does not restrict the use of harmful chemicals; it merely requires businesses to provide warnings. Businesses that fail to provide adequate warnings can be sued by either the state attorney general, city or district attorneys in cities with more than 750,000 people, or as is most likely, private individuals, who can get 25 percent of any settlement in addition to attorneys’ fees. As a result, Prop 65 warnings are ubiquitous throughout the state—appearing on products and buildings alike—as businesses attempt to shield themselves from expensive and time-consuming lawsuits.
New Prop 65 Website
At the beginning of 2016, the State of California's Office of Environmental Health Hazard Assessment (OEHHA) adopted a new regulation to give itself authority to create and operate a website to provide information about the Prop 65 labels the public sees on everyday products and in everyday locations such as restaurants, gas stations and airports. Section 25205 allows OEHHA to post information about pathways of exposure to chemicals in products and strategies to avoid exposure, while also providing a disclaimer that OEHHA cannot ensure the accuracy of anything it posts. It creates a petition process for manufacturers, sellers and the public to seek correction of misinformation posted by the state.
On Friday, April 1, 2016, the website went live.
The first set of chemicals and products included in this initial website are:
Benzene
Chlorinated Tris
Chlorinated Tris in Furniture Products
Formaldehyde
Formaldehyde in Furniture Products
Mercury and Mercury Compounds
Mercury in Dental Amalgam Fillings
Nitrous Oxide Use in Dental Care
In future, products that carry a Prop 65 warning label can expect to receive requests from the state for additional information to post on this website. Among the data that OEHHA can request from the manufacturer are the concentrations of chemicals in components, anticipated routes of exposure, estimated levels of exposure and testing and analysis.The Prop 65 warnings website provides plenty of background information both on harmful chemicals and some of the products that contain them. Under the new regulations, any consumer who sees a Prop 65 warning on a product will be directed to a website that outlines all the harmful effects of that product.
Here's one example related to alcoholic beverages: “Alcoholic beverages (when associated with alcohol abuse) and ethanol in alcoholic beverages are on the Proposition 65 list because they can cause cancer. Consuming alcoholic beverages increases the risk of cancers of the mouth, throat, voice box, esophagus, liver, breast, colon and rectum.”
In addition to this graphic language, the website provides information on recommended alcohol consumption—up to one drink a day for women and up to two drinks a day for men—and says reducing drinking reduces your risk of cancer.
Calculus of Providing a Prop 65 Warning
Starting Aug. 30, 2018, the content of the Prop 65 warning will change in two key ways: (1) Businesses will have to identify at least one potentially harmful substance that the product contains; and (2) The warning must include a reference to California's Prop 65 Warnings website: www.P65Warnings.ca.gov.
The current Prop 65 warnings allow businesses to provide a general notice warning of exposure to a harmful chemical. The new warnings must be more specific, and the corresponding website will provide detailed information on the many chemicals the state of California deems harmful.
Here is a comparison of the current and new warnings:
Current warnings:
New warnings:
Besides language or content changes, the business calculus of when to provide a warning will change in the post-2018 world. Under the current rules, even if your product did not contain a Prop 65-listed chemical or there was no risk of exposure requiring the placement of a Prop 65 warning on the product, many companies would place the warning on the product since it was the only 100 percent foolproof prophylactic to being on the receiving end of a bounty-hunting plaintiff's attorney's 60-day notice to sue—euphemistically known as the shakedown notice.
Even if you have analytical chemistry tests and toxicologist assessments that show no risk of exposure, the shakedown notice starts a game of chicken with the plaintiff. Even if you have tests that show no risk of exposure, and are confident that you will win in court, the choice to the manufacturer becomes one of paying your defense counsel to prove it or paying off the plaintiff to avoid paying your defense counsel to prove it.
Since “proving it” costs can quickly escalate into the six figures, business decisions—not legal decisions—are made and settlements are reached quickly and typically in the range of $20,000 to $40,000, since this represents a fraction of the cost to defend yourself in court.
This entire calculation is now upended. In the post-2018 world, placing the warning is no longer 100 percent foolproof or risk free. Subjective decisions will have to be made about which chemical to name in the warning—opening up a new area of potential litigation and bounty-hunting opportunities.
Also, placing a warning will now put your product on a website where all sorts of negative information about its potential toxicity may be placed, opening the manufacturer up to data requests from the government to supply information for this website and perhaps putting an onus on the manufacturer to monitor and hire experts to correct any misinformation that others post.
For many manufacturers, doing the upfront work of testing and analyzing whether their products sold in California exceed the exposure threshold requiring a warning label will make more sense now that the warning label is no longer risk free.
Safer State Consumer Products Regulations
In 2017, the Department of Toxic Substance Control has finally begun to identify the “priority products” that contain potentially harmful chemicals that it will regulate under its vast new authority to examine product design and the global supply chain of products sold in the state of California. The first two selected are (1) children's foam-padded sleeping products containing tris(1,3-dichloro-2-propyl) phosphate or TDCPP; and (2) spray polyurethane foam (SPF) systems containing unreacted diisocyanates. But the following categories of products are next in line for selection:
Beauty, personal care and hygiene products
Building products, including painting products, adhesives, sealants and flooring
Household, office furniture and furnishings
Cleaning products
Clothing
Fishing and angling equipment
Office machinery
Once selected, the manufacturer or seller of the priority product must prepare an “alternatives analysis” or “AA.” An AA is a brand-new paperwork beast. It is part large California Environmental Quality Act/National Environmental Policy Act-type document, part hazard assessment, part life-cycle assessment and more. It has the potential to make a CEQA document look like a haiku in comparison.But more critically, it takes a heretofore entirely private process of product development, design and global supply chain relationships and brings it into the open, asking the online public to comment and provide suggestions on the material selection and manufacturing processes, and requires manufacturers to analyze those suggestions in a public forum. Nongovernmental organizations, plaintiffs’ attorneys and competitors, as well as the general public will have equal access and input.
Together, these two California regulations mark a new era in environmental and product regulation. And their websites will be a new social media playground for crowdsourcing regulations and battles of plaintiffs and defense counsel alike.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721515&vname=dennotallissues&fn=111721515&jd=111721515
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Nanoscale Materials Data Collection Rule Guidance Coming
May 16, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Draft EPA guidance to help companies making and processing nanoengineered chemicals understand how to comply with a final rule requiring them to submit existing production, use and other information will be issued for comment May 16, according to an advance copy of the Environmental Protection Agency notice.
The final rule (RIN:2070-AK39) is effective on Aug. 17 thanks to a three-month delay the agency announced in a May 12 Federal Register notice (82 Fed. Reg. 22,088). The rule applies to existing chemicals designed in the range of 1 to 100 nanometers to have special strength, electrical or other properties they would not have when made in larger dimensions. A nanometer is about the size of a virus.
BASF, the Dow Chemical Co., Dupont, NanoHorizons, Inc., Pyrograf Products, Inc. and Zyvex Technologies, Inc. are among the hundreds of companies that make or process nanoengineered chemicals. Such chemicals are used to make a wide variety of industrial and consumer products including specialized paints, memory chips, airplane parts, tennis rackets and solar panels.
The forthcoming guidance and delay in the rule's effective date are good news for companies that make and process nanoengineered chemicals, Martha Marrapese, a partner with Wiley Rein LLP's Washington office, told Bloomberg BNA. Such companies needed help answering questions such as how much re-engineering of an existing nanoscale chemical would transform it into a new, nanoengineered substance subject to the rule's data-collection requirements, said Marrapese, who also serves as general counsel for the Nanomanufacturing Association, which was among the groups that asked the EPA to delay the rule's effective date until the implementation guidance was issued.Companies have provided the EPA questions they hope its guidance will address, she said.
One aspect of the final rule, however, still may warrant repeal or further delay, Marrapese said.
Two Requirements
The rule requires companies making or processing nanoengineered chemicals to provide the EPA already known or reasonably attainable manufacturing methods, production volume, use, exposure, release, health and safety and other information. Companies don't have to generate any new information to comply with the rule, which the EPA issued using the authorities of a data-collection provision—Section 8(a)—of the Toxic Substances Control Act.
The data will be collected in two ways, under the rule.
First, companies that have made or processed a discrete form of a nanoengineered chemical substance during the three years preceding the rule's effective date—any time between Aug. 17, 2014 and Aug. 17, 2017—have a one-time reporting obligation. They have to submit known or readily available information to the EPA by Aug. 17, 2018.
Second, the rule has an ongoing reporting obligation. If a company in the future intends to make or process a new discrete, nanoengineered form of existing chemical, it must provide the agency the same types of information at least 135 days before manufacture or processing commences.
Delay May Lead to Repeal
Richard Denison, lead senior scientist with the Environmental Defense Fund, described the final rule's delay as “an annoying addition to the ridiculously long time course for this rule.” The group has urged the EPA to regulate nanoengineered chemicals for more than 10 years.
“Some in industry are seeking a wholesale repeal [of the rule],” Denison said. “It remains to be seen whether this delay is part of a strategy to allow those industry voices time to prevail.”
He described the EPA's rationale for not proposing and taking comment about a possible delay as “pathetic.” The agency waited until the week before the final rule was scheduled to go into effect to delay the regulation and then claimed it didn't have time to allow for public notice and comment about the delay, Denison said.
“This is an increasingly common tactic under this administration,” he said, adding that the tactic undermines public trust.
Guidance's Effectiveness Critical
Lynn Bergeson managing partner of Bergeson & Campbell, P.C. told Bloomberg BNA the EPA's decision to delay the rule's effective date until after it issues the draft guidance mutes the complaint that companies wouldn't know how to comply. It doesn't mean, however, that the guidance will be sufficient to answer companies’ questions, she said by email.
“Whether the guidance that has yet to be issued provides the requisite level of detail to facilitate effective reporting remains to be seen,” she said.
If the guidance is inadequate, flawed or still confusing when issued as final, some parties may argue the rule needs further to be further delayed or suspended indefinitely, Bergeson said. “But that is by no means clear.”
“It does up the stakes for EPA to prepare and issue final guidance that silences concerns raised by many, many detractors, which is a tall order,” Bergeson said.
Marrapese said the Nanomanufacturing Association hopes the administration will still consider repealing or delay the ongoing reporting obligation to provide information for nanoengineered chemicals companies may make or work with in the future, until it has evaluated the value of the information it will receive from the one-time reports due in 2018.
Not a Broader Signal
Christopher Bell, an attorney with the Washington, D.C. office of Greenberg Traurig, LLP, said EPA's decision to delay the effective date of the nanoengineered chemicals rule shouldn't be seen as a signal the agency's approach to overseeing these or other chemicals has changed.
The new administration has said it will stop, look and listen before proceeding with rules, and it is doing so, Bell said.
The delay slightly slows down a data-gathering process that wasn't going to produce results in the near term anyhow, he said.
The agency's decision on this rule doesn't offer any insight into how the agency may address three final rules it is crafting to restrict the uses of certain solvents, Bell said.
The solvent restriction rules raise very different questions about how the EPA and the Occupational Safety and Health Administration will jointly oversee worker safety, he added.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721513&vname=dennotallissues&fn=111721513&jd=111721513
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EPA's Draft Nano Rule Guide Appears Unlikely To Prevent Industry Lawsuit
May 15, 2017 | Inside EPA
By Dave Reynolds
EPA is floating draft guidance clarifying its final nanomaterials reporting rule, including definitions of reportable and exempt materials, though the draft appears unlikely to prevent a lawsuit from nanomaterials producers and users over their claims that the final rule unlawfully failed to give them a chance to weigh in on the definitions.
EPA May 15 issued the “Draft Guidance on EPA’s Section 8(a) Information Gathering Rule on Nanomaterials in Commerce” and will seek comment on the guide for 30 days.
Last week, EPA delayed the effective date of the rule from May 12 to Aug. 14, to allow time to craft guidance that seeks to address industry criticism the rule is unclear.
But in a notice scheduled for publication in the May 16 Federal Register, EPA says that it is seeking comment only on the draft guidance and not the final rule, suggesting the guidance will not resolve industry assertions that the Obama administration violated the Administrative Procedure Act by not allowing input prior to the final rule.
“This draft guidance provides answers to questions the Agency has received from manufacturers (includes importers) and processors regarding the rule,” the notice says. “EPA is accepting comments regarding the guidance, but is not accepting comments regarding the rule itself, which has already been finalized.”
EPA issued the Jan. 12 Toxic Substances Control Act (TSCA) section 8(a) reporting rule, after years of wrangling with the nano industry, including repeated calls for the agency to withdraw its April 6, 2015, draft rule and issue a revised version after further consultation with industry.
The rule established reporting and recordkeeping requirements for certain substances when they are manufactured or processed at the nanoscale, as defined in the final rule. The agency has said data reported under the rule will guide its future oversight of the novel substances.
Since the release of the final rule manufacturers and users of nanomaterials have urged the Trump administration to repeal the rule, arguing that it is burdensome and unclear.
“The EPA has failed to provide industry with a clear understanding of the substances that are subject to reporting,” said the Nanomanufacturing Association in a March 31 letter to the Department of Commerce recommending that EPA's Jan. 12 TSCA section 8(a) reporting rule be repealed under the Trump administration's deregulatory efforts.
Industry's Concerns
An industry attorney has suggested a lawsuit over the rule based on arguments that the agency failed to seek public input on certain information in the final rule, and that a provision in TSCA would allow the Trump EPA to scale the rule back if a federal court agrees that the new data should have been issued for public comment.
Specifically, the official has argued that in response to critical comments, EPA added to the final rule a definition of unique and novel properties and other terms, and that stakeholders did not have an opportunity to comment on those new definitions prior to their appearance in the final rule.
The draft guidance seeks to clarify the scope of reportable materials, and defines terms used in the rule, such as “unique and novel properties” or “reasonably ascertainable” information. It also clarifies exemptions for certain materials, such as nanomaterials manufactured solely as part of an article, or for research and development.
EPA's guidance defines reportable materials as a combination of particle size and unique and novel properties, adding that unique and novel properties, includes an element of intent, so nanomaterials are reportable if they are manufactured on the nanoscale in order to exhibit such properties.
“Unique and novel properties means any size-dependent properties that vary from those associated with other forms or sizes of the same chemical substance, and such properties are a reason that the chemical substance is manufactured or processed in that form or size,” the draft guidance says.
EPA says the rule requires reporting only of “reasonably ascertainable” information, and also explains that standard.
“If processors do not know about specific properties such as particle size and other properties that would allow them to know if they are processing a chemical substance subject to the rule, it would be within the reasonably ascertainable standard to ask their suppliers for information that would enable to processor to determine whether the supplier is selling them a nanoscale material subject to reporting and if so provide them with what reportable information they have,” the guide says.
https://insideepa.com/daily-news/epas-draft-nano-rule-guide-appears-unlikely-prevent-industry-lawsuit
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US EPA Consults On Nano Reporting Rule Guidance
May 16, 2017 | Chemical Watch
The US EPA has issued for consultation draft guidance for its nanoscale reporting rule.
It closely follows the agency's announcement last week delaying enforcement of the reporting rule by more than three months – to 14 August – amid industry concern over a lack of clarity in its requirements.
Once effective, the regulation will require one-time reporting for existing discrete forms of nanoscale materials, and a standing one-time reporting requirement for new ones.
The 14-page document – Guidance on EPA's Section 8(a) Information Gathering Rule on Nanomaterials in Commerce – answers questions the agency has received from manufacturers and processors since it issued the final rule on 12 January.
These include inquiries related to:what constitutes a reportable substance;who is required to report;which information must be reported and when;confidentiality; andadditional areas, like exemptions and the status of articles under the rule.
Included in the draft guidance is clarification around the 135-day advanced notification requirement for new discrete forms. The agency says this is not a formal review period that prohibits manufacture, and there is "no obligation upon the company to wait 135 days after reporting to manufacture or process."
Comments are due by 15 June. The agency says it will accept feedback on the guidance, but not on the rule itself as this has been finalised.
https://chemicalwatch.com/55864/us-epa-consults-on-nano-reporting-rule-guidance
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Oregon County To Vote On Blocking Natural Gas Terminal
May 16, 2017 | Reuters
By Tom James
A coastal Oregon county will vote Tuesday on a ballot measure to block a proposed natural gas terminal, the latest in a series of efforts to thwart energy projects across the Pacific Northwest.
The measure would ban transport of fossil fuels not intended for local use through Coos County, located about 200 miles (322 kms) south of Portland.
Backers have called the initiative a response to a $7.6 billion proposal by Calgary-based Veresen Inc, to build a facility in the county where natural gas would be liquefied and transferred to tanker ships for sale abroad. They have cast the measure as a local refusal to contribute to global warming.
Should the ban pass, it could bring the county into conflict with the administration of President Donald Trump. Gary Cohn, head of the National Energy Council, in April singled out the Veresen project as a priority for the administration.
The Coos County initiative is part of regional resistance in the Northwest to fossil fuel projects that has seen the blockage of several major export facilities.
Last year, the Lummi Nation Native American tribe and environmental groups blocked an export terminal in Northwest Washington state that would have moved Montana and Wyoming coal to markets in Asia.
In January, Washington State denied a permit for a coal export terminal in the city of Longview, citing concerns about the financial viability of the project.
In February, bowing to pressure from activists, Seattle's city council voted to divest approximately $3 billion from Wells Fargo, citing concerns over the bank's support of the North Dakota Access Pipeline, among other factors.
Passage of the Coos Bay measure would be another blow for liquid natural gas projects on the West Coast, even as depots in other areas of the country have moved forward.
Cheniere Energy Inc opened a port in Louisiana last year and several other companies are set to open projects on the Gulf Coast in 2018 and 2019. Dominion Energy Inc plans to open the Cove Point LNG port in Maryland later this year.
(Reporting by Tom James, additional reporting by Valerie Volcovici and Timothy Gardner; Editing by Patrick Enright and Andrew Hay)
http://www.reuters.com/article/us-oregon-energy-vote-idUSKCN18C116
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EPA Wants Clean Power Plan Lawsuits Paused Indefinitely
May 16, 2017 | BNA Daily Environment Report
By Andrew Childers
Freezing legal challenges to the carbon dioxide standards for power plants would allow for a faster review of the rule than sending it back to the EPA for reconsideration, the agency told a federal appellate court.
Sending the Clean Power Plan (RIN:2060-AR33) back to the Environmental Protection Agency for review may lift the U.S. Supreme Court's stay of the carbon dioxide standards, forcing the agency to implement a rule it is considering revising or killing outright or go through lengthy public comment process to halt it again.
Instead, the EPA asked the U.S. Court of Appeals for the District of Columbia Circuit May 15 to pause ongoing challenges to the rule, which would allow the agency “to focus squarely on completing the review of the rule and undertaking potential rulemaking as promptly as possible” (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, briefs filed 5/15/17).
EPA Administrator Scott Pruitt had been among the Clean Power Plan's leading foes while he was Oklahoma attorney general, and the Trump administration has vowed to kill off the rule while the EPA sidelines climate change in favor of core environmental programs such as Superfund and water infrastructure.
The D.C. Circuit has temporarily sidelined challenges to the Clean Power Plan and related carbon dioxide limits for newly built power plants while it decides whether to send the rules back to the EPA for correction—which environmental advocates favor—or whether it should continue to hold the current legal challenges in abeyance while the EPA conducts its review.
An indefinite hold on legal challenges to the Clean Power Plan—rather than formally sending it back to the EPA for reconsideration—would let the rule languish in limbo, environmental groups argued.
While the groups hope the court actually issues a decision on the legality of the Clean Power Plan, they favor remanding the rule to the agency. Sending the rule to the EPA would force it to go through the required rulemaking procedures should the agency choose to halt or alter the carbon dioxide standards, the Environmental Defense Fund, Natural Resources Defense Council and other environmental groups said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721516&vname=dennotallissues&fn=111721516&jd=111721516
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Supreme Court Stay Factors Into Litigation's Future
May 15, 2017 | E&E News PM
By Amanda Reilly
The Trump administration asked a federal court today to indefinitely suspend lawsuits over the Clean Power Plan rather than send the litigation back to U.S. EPA.
Pausing the litigation indefinitely would conserve judicial resources and maintain the status quo — including the Supreme Court's February 2016 stay of the Obama administration's signature climate rule, the Department of Justice argued.
Sending cases back to EPA would "raise substantial questions regarding the stay's vitality," DOJ said in a court brief.
The Trump administration asked the court in March to hold the litigation in abeyance as it reviews and revises or rescinds the Clean Power Plan, which required states to craft plans to reduce carbon dioxide emissions from existing power plants.
Last month, the U.S. Court of Appeals for the District of Columbia Circuit suspended lawsuits over the Obama administration rule for 60 days. Judges asked parties involved in massive litigation whether they should remand the consolidated cases back to EPA or continue to hold them in abeyance (Greenwire, April 28).
Foes of the rule today also argued in favor of an indefinite hold on the litigation, telling the court they wanted to preserve their right to judicial review should the Trump administration fail to roll back the rule.
Environmentalists, states, cities and power companies that support the Clean Power Plan, along with wind and solar industry associations, all filed briefs in favor of remand.
The Environmental Defense Fund, Natural Resources Defense Council, Sierra Club and other environmental groups said placing the cases in long-term abeyance, as the Trump administration has requested, would "convert" the temporary stay into a "long-term suspension of the Clean Power Plan" — without EPA first going through the proper steps for rescinding a regulation.
Cities and power companies that support the Clean Power Plan likewise argued that an indefinite pause of the litigation would amount to a "short-circuiting" of procedural and other Clean Air Act requirements.
Renewable energy trade groups, including the American Wind Energy Association and the Solar Energy Industries Association, said sending the cases back to EPA would ensure that the agency goes through "reasoned decisionmaking."
"EPA cannot elude that bedrock principle of administrative law and effectively nullify the Rule through continued — and possibly indefinite — abeyance," the trade organizations said.
Lawyers in the case, though, disagree over exactly how a remand decision would affect the stay, and whether Supreme Court justices will retain jurisdiction over the rule. There's also a debate in legal circles over how much the stay even matters at this point, given the Trump administration's pledges to get rid of the rule (Energywire, May 8).
The administration argued that a remand to EPA would not only throw the Supreme Court stay in doubt but also result in "unnecessary litigation" and force the agency to devote "limited resources" to related procedural matters.
The agency will likely have to go through a rulemaking to extend the Clean Power Plan's existing deadlines — and respond to litigation over any new deadlines it sets — even as it attempts to dismantle the rule, DOJ noted.
"Abeyance, by marked contrast, would allow the Court to simply resume the current litigation and save substantial judicial resources," the administration said.
While they argued in favor of sending the cases back to EPA, supporters of the Clean Power Plan also urged the D.C. Circuit to still issue a ruling on the legality of the rule.
The court and the parties to the litigation will have otherwise wasted "massive resources" in the drawn-out legal battle over the rule, the environmental groups said.
Dozens of briefs have been filed in the case, and in September 2016, 10 judges of the court heard nearly seven hours of oral arguments.
"The only appropriate path is to issue a merits decision," the environmental groups said.
Click here to read EPA's brief.
Click here to read environmentalists' brief.
Click here to read the brief from cities and power companies.
Click here to read the renewable energy associations' brief.
Click here to read the brief by industry and state foes of the rule.
Click here to read the brief filed by state supporters of the Clean Power Plan.
https://www.eenews.net/eenewspm/2017/05/15/stories/1060054572
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China Eyes U.S. Energy After $20 Billion ‘Belt, Road’ Deals
May 16, 2017 | BNA Daily Environment Report
By Tom Mackenzie and Sarah Chen
China is setting its sights on U.S. energy as a growing reliance on imports forces it to look beyond traditional suppliers, according to the head of the country's biggest oil and gas company.
China National Petroleum Corp. will import more crude oil and natural gas from the U.S. and will consider participating in America's growing liquefied natural gas export industry, Chairman Wang Yilin said in an interview May 14 with Bloomberg TV on the sidelines of the Belt and Road Forum in Beijing. The energy giant will sign $20 billion in deals during the two-day event, a meeting of countries involved in China's initiative to connect Europe, Asia and Africa through infrastructure and investment.
“The U.S. has very rich oil and gas resources, and as China pursues a diversification of its crude supply the U.S. will of course be one of the sources.” Wang said. “We will consider exploring cooperation in areas such as jointly developing liquefied natural gas facilities and gas transport.”
China's growing use of U.S. energy is taking CNPC beyond the Belt and Road plan, which is President Xi Jinping's cornerstone trade initiative. Wang's comments follow a separate deal between China and the U.S. announced Thursday by President Donald Trump's administration that welcomed the country engaging in long-term contracts with American LNG suppliers.
CNPC currently has more than 50 joint projects under way in 19 countries taking part in Belt and Road, according to Wang. In Central Asia and Russia, they're mainly focused on natural gas, while in African and Middle Eastern nations the majority of projects concern oil.
Falling Production
The world's biggest energy user is becoming more reliant on overseas crude supplies as production at home plummets after its state-run firms—including CNPC's listed unit PetroChina Co.—cut spending to cope with the price crash. China has overtaken the U.S. as the world's biggest oil importer, and emerged in February as the largest buyer of crude from the U.S., which has boosted exports thanks to the country's shale oil boom.
Though China's oil giants are raising combined spending for the first time in four years, that may not be enough to halt the drop in domestic crude output, especially as focus shifts toward natural gas, according to the International Energy Agency. Production in the first four months dropped 6.1 percent from the same period a year ago, extending the record pace of declines in 2016. Imports are up more than 12 percent during that period.
“We need to speed up our cooperation with resource countries to develop assets to meet China's growing need for oil and gas,” Wang said. “By doing this, we can balance the higher reliance on imports with better use of foreign assets.”
Aramco, Gazprom
The $20 billion in deals to be signed during the Belt and Road Forum include Saudi Arabian Oil Co. taking a stake in the company's Yunnan refinery, a $4 billion agreement for a natural gas processing plant in Azerbaijan with the State Oil Co. of Azerbaijan, gas storage and gas-fired power projects with Russia's Gazprom PJSC and a geothermal project in Kenya, according to CNPC.
The agreement with the U.S. announced last week could pave the way for a second wave of investment in U.S. LNG terminals, according to Wood Mackenzie Ltd. American supplies accounted for almost 7 percent of China's LNG imports in March, customs dada show. The nine cargoes sent over the last year to China from Cheniere Energy Inc., the first U.S. exporter from the country's lower 48 states, were sold on a so-called spot basis, rather than under long-term contracts, the consulting company said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721503&vname=dennotallissues&fn=111721503&jd=111721503
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Mindful Of CPP Stay, Groups Spar Over Possible D.C. Circuit Rule Remand
May 15, 2017 | Inside EPA
By Lee Logan
Supporters and opponents of EPA's power sector greenhouse gas rules are clashing over whether a federal appellate court should pause litigation over the rules or remand them to the agency as it mulls whether to revise or rescind the regulations, a question that could determine whether the Supreme Court's stay of the rule remains in place.
EPA, as well as groups that oppose the rules, are urging the U.S. Court of Appeals for the District of Columbia Circuit in May 15 briefs to hold the litigation in abeyance as the agency reviews the rules. They warn that remanding the rules would risk additional litigation and “consume limited agency and staff resources.”
But state, environmentalist and private sector supporters of the CPP continue to urge that the D.C. Circuit issue a merits ruling in cases over the GHG rules, though they say a remand would be preferable to abeyance if the court does not wish to issue a merits ruling.
The court in a pair of April 28 orders paused litigation over the existing power plant rule known as the Clean Power Plan (CPP) -- as well as a companion GHG rule for new plants -- for 60 days, signaling that the court is unlikely to issue a ruling on the major Obama-era GHG rule.
But the court also asked parties whether it should remand the rules to the agency. The question is key for the CPP, because a remand could lift the Supreme Court's February 2016 stay of the rule.
A remand “would raise substantial questions regarding the stay's vitality,” EPA says in its May 15 brief urging the court to continue holding the suit in abeyance.
That is because, under the D.C. Circuit's rules, it does not retain jurisdiction over a matter it remands to the agency. The high court said its stay would remain in place pending the D.C. Circuit's “disposition” of the lawsuits and any appeal to the high court.
All parties appear to agree that a remand of the rule constitutes such “disposition.” That would quickly lift the stay unless parties challenge the D.C. Circuit's remand decision at the Supreme Court.
EPA notes that groups could appeal a remand decision, spurring “unnecessary litigation.” And if the stay is lifted, the agency would have to “engage in rulemaking” to extend the CPP's deadlines, and groups supporting the rule might challenge that effort.
The agency's brief also says it is moving forward with its review of the CPP and “may be prepared to begin the interagency review process of a resulting proposed regulatory action in the near future.”
Supporters of the power sector GHG rules, though, continue to strongly oppose holding the litigation in abeyance, particularly for the consolidated CPP litigation, West Virginia, et al. v. EPA, et al.
They urge the D.C. Circuit to move forward with a merits ruling -- noting that they cannot find one example of the court halting consideration of a lawsuit after it held oral arguments.
Short of that, “remanding these cases to EPA would be more consistent with foundational principles of administrative law and the premise upon which the Supreme Court’s stay was granted than holding these cases in abeyance indefinitely,” a group of “clean” utilities supporting the rule writes in its May 15 brief. Trade associations for renewable energy firms echo these arguments in their brief.
Follow Procedure
The practical impact of lifting the stay -- given the Trump administration's aversion to the power sector GHG rules and its pledge to not enforce their requirements -- is that it “would properly place the responsibility on EPA to follow statutory rulemaking procedures if it wishes to delay implementation or make other changes to the rule,” a coalition of environmental groups argues in its brief.
And a coalition of states backing the CPP says in a separate brief that an open-ended abeyance would cause “EPA’s Clean Air Act obligation to limit carbon pollution from existing power plants [to] be indefinitely delayed.” As such, if the court does hold the litigation in abeyance, “it should accordingly limit the duration to mitigate the harm to State Intervenors and the public from further delays in limiting power plant pollution.”
Both the state coalition and environmentalists also float the possibility of “limited” oral argument on how it should proceed with the litigation, with the environmentalists noting the “high stakes and massive investments of parties.”
States and industry groups that oppose the CPP argue in a May 15 brief that abeyance is the best course of action because it preserves their right to judicial review of the rule if EPA does not ultimately rescind or revise it. Even though such a step is “widely anticipated,” the petitioners note an “analogous situation” occurred when the Obama EPA reviewed a Bush-era ozone air standard but ultimately left the standard unchanged.
In that case, “this Court proceeded simply to lift the abeyance and decide the merits of the legal challenge.”
And the CPP opponents say that the high court's stay “could be jeopardized” by a remand, generating “additional litigation in the near term before the Supreme Court and likely this Court, presumably not the intended result.”
The rule opponents say that requiring EPA to provide periodic updates on its regulatory review would assuage any concerns about the agency unduly delaying the review. “This approach provides all the advantages of abeyance discussed above but also provides additional assurance that the agency is not seeking simply to 'perpetually dodge review' by merely indicating its intent to revisit the challenged Rule,” they argue.
NSPS Litigation
Meanwhile, regarding the companion power plant new source performance standards (NSPS), which was not stayed during judicial review, supporters of the rule say they do not have a preference between the D.C. Circuit holding the litigation in abeyance or remanding the rule to EPA.
The NSPS “is currently operating to limit pollution. Thus, the choice whether to hold in abeyance or remand the consolidated cases will not bear on the New Source Rule’s effectiveness during any period of review by the new administration,” the environmentalist coalition says. Utilities supporting the NSPS make similar arguments in their separate brief.
Like the CPP case, the environmental groups add that the court should proceed with considering the case, North Dakota, et al. v. EPA, et al. The agency “has not identified good reasons to avoid oral argument and decision of the case,” the groups say.
The state coalition supporting the rules argues that the D.C. Circuit should clarify the impacts of any decision to remand the rules or hold the case in abeyance. For instance, it suggests that holding the NSPS suit in abeyance might allow the court to consolidate the current litigation with challenges to future EPA rulemaking.
EPA in a separate brief in North Dakota says while either abeyance or a remand would avoid “unnecessary adjudication,” abeyance is preferred in this case because it avoids “prejudice to petitioners,” who would have to file new lawsuits if they “became dissatisfied with the pace of further administrative proceedings or otherwise determined that it was necessary to renew their challenges to the Rule.”
And the state and industry petitioners in the NSPS litigation say abeyance is consistent with the D.C. Circuit's “longstanding practice in a wide variety of procedural circumstances,” and would retain their right to challenge the rule if EPA does not rescind or revise it.
https://insideepa.com/daily-news/mindful-cpp-stay-groups-spar-over-possible-dc-circuit-rule-remand
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U.S. Senators Push For Appalachian Ethane Storage Hub Study
May 16, 2017 | Natural Gas Intelligence
By Jamison Cocklin
U.S. Sen. Shelley Moore Capito (R-WV) has introduced a bill that would require federal agencies to study the feasibility of an underground ethane storage and distribution hub in the Appalachian Basin.
The legislation (S 1075) would direct the Departments of Energy and Commerce, along with other relevant agencies, to examine potential locations for the storage hub in relation to production, the economic benefits, other infrastructure required to support it and potential industrial consumers. The Appalachian Ethane Storage Hub Study Act would be completed within two years of enactment.
Sens. Rob Portman (R-OH) and Joe Manchin (D-WV) are co-sponsoring the bill. Capito has tried in the past to push the study through as an amendment to other legislation that failed.
The study, she said, would "help us figure out the best way to utilize the region's resources and improve our infrastructure. Not only will this legislation inform future projects and policies, but it will also help attract private dollars to ensure Appalachia remains an important player in America's energy and manufacturing strategy."
The bill was introduced last week and has since been referred to the Senate energy and natural resources committee. It comes as Shell Chemical Appalachia LLC is constructing a multi-billion dollar ethane cracker in Western Pennsylvania that would consume about 100,000 b/d of ethane. That facility is scheduled to come on stream next decade, but it has helped spark the efforts of elected officials and private industry to expand Ohio, Pennsylvania and West Virginia's manufacturing base.
Pennsylvania commissioned IHS Markit to conduct a study that found the Marcellus and Utica shales contain enough ethane to accommodate up to four more ethylene crackers in addition to Shell's. When it comes to infrastructure, however, the tri-state region needs more of it. Underground storage, the study found, is grossly insufficient in the basin, especially if a growing petrochemical industry and the midstream expect to operate stably.
The study estimates that the region needs 3.5-7.5 million bbl of liquids storage to foster more development. Currently, there is no underground liquids storage in the region. Only one project has been announced by Mountaineer NGL Storage LLC. The company has plans for a 2 million bbl facility in southeast Ohio.
A feasibility study, the bill's sponsors said, would demonstrate the economic potential of such a project, inform future policy for energy infrastructure and encourage private investment that could help to revive Rust Belt areas.
About two-thirds of North America's ethylene output comes from the Gulf Coast. The sponsors said the study is in the national interest because it would help diversify petrochemical refining and manufacturing capabilities that are concentrated in the South and under constant threat of natural disasters such as hurricanes. More diversification, they said, would help the Gulf focus on exports that could aid U.S. trade.
Establishing a storage hub in the Northeast, the sponsors added, would also help prevent waste by preserving manufacturing feedstocks that are currently being rejected into the gas stream.
Shell's facility is one of five that have been announced for the Appalachian Basin. While most of the other projects are in limbo, Thailand's PTT Global Chemical pcl is expected to make a final investment decision later this year about a multi-billion dollar ethane cracker that would be located in Ohio.
http://www.naturalgasintel.com/articles/110465-us-senators-push-for-appalachian-ethane-storage-hub-study
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AGA Says No Natural Gas Utilities Hit by WannaCry Cyberattack
May 15, 2017 | Natural Gas Intelligence
By Charlie Passut
The American Gas Association (AGA) said no natural gas utilities have been compromised by WannaCry ransomware, a cyberattack that has affected computer systems and caused mayhem worldwide.
Meanwhile, the Department of Homeland Security (DHS) said it was "ready to lend technical support and assistance" to its partners in the U.S. and foreign nations over the ransomware -- defined by the agency as a type of malicious software, or malware, that infects a computer system and restricts users' access until a ransom has been paid to unlock it.
In a joint statement Monday, the AGA and the Downstream Natural Gas Information Sharing and Analysis Center (DNG-ISAC) said public-private partnerships within the natural gas industry have proven crucial for timely information sharing.
"At this point, no compromise has been identified by a natural gas utility in connection with the WannaCry ransomware cyber-attacks," said Jim Linn, AGA's managing director for information technology and executive director at DNG-ISAC. He said the latter "and the natural gas industry community that supports it remain active and vigilant as the WannaCry ransomware cyberattacks have unfolded throughout the world."
Linn said software patches, indicators of compromise and other relevant data collected by the DHS and other agencies "was shared in a timely way." He mentioned the Transportation Security Administration's Pipeline Security Division, the United States Computer Emergency Readiness Team, the Federal Bureau of Investigation, and the Department of Energy.
"Gas utility information technology systems and supervisory control and data acquisition systems have been fortified," Linn said. "The DNG-ISAC continues to share threat, vulnerability and situational awareness amongst its community of U.S. and Canadian natural gas distribution and transmission companies."
Last Friday, DHS encouraged Americans to download a patch that Microsoft Corp. released in March. The patch addresses a specific vulnerability within Microsoft's Windows system that allows WannaCry to infiltrate.
"Installing this patch will help secure your systems from the threat," DHS said. "Individual users are often the first line of defense against this and other threats, and we encourage all Americans to update your operating systems and implement vigorous cybersecurity practices at home, work, and school."
According to reports, WannaCry has so far infected hundreds of thousands of computers around the world in 150 countries. Brazil's state-owned oil company -- Petróleo Brasileiro SA, or Petrobras -- has reportedly been affected.
http://www.naturalgasintel.com/articles/110466-aga-says-no-natural-gas-utilities-hit-by-wannacry-cyberattack
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Trump Infrastructure Vision Expected in Weeks: Chao
May 16, 2017 | BNA Daily Environment Report
By Shaun Courtney
The outlines of a Trump administration infrastructure plan will be released in the next “several weeks,” Transportation Secretary Elaine Chao told an Infrastructure Week gathering May 15 at the U.S. Chamber of Commerce.
Chao echoed earlier comments that the administration plans to use $200 billion in direct federal funds to leverage a $1 trillion investment in the country's crumbling infrastructure over 10 years. The administration intends for the $200 billion investment to be revenue-neutral, rather than adding to the federal deficit.
“[The Office of Management and Budget] is identifying offsets in order to avoid saddling future generations with more debt,” Chao said.
Timing
The administration has been vague about the timing and substance of its plan. Chao's remarks May 15 did little to clarify what exactly her agency will be releasing in several weeks or when the administration expects a bill to make it to President Donald Trump's desk.
“The administration will share its vision of what the infrastructure plan will look like in the next several weeks, which will kick off our collaboration with Congress,” Chao said.
Last week Senate Commerce, Science, and Transportation Committee Chairman John Thune (R-S.D.) told reporters that infrastructure could slip to next year's legislative calendar because of competing priorities like health care and the next fiscal year's budget. Thune, the third-ranking Republican in the Senate, said the administration is running out of time to get an infrastructure bill through Congress before 2018.
Funding
The administration continues its focus on leveraging state, local and private funds to get to the president's goal of $1 trillion. Chao said the administration will give priority access to new federal funding to states and localities that already have secured funds or financing on their own.
“The goal is to use federal funds as an incentive to get projects underway and built more quickly, with greater participation by state, local and private partners,” Chao said.
The transportation secretary reiterated the administration's interest in public-private partnerships that use private funds to build or maintain public infrastructure like roads in exchange for operating fees or other benefits to the private investors.
Thune last week said such agreements are easier to make palatable for private investors in densely populated areas. Rural states or districts, however, will need alternative options because the return on investment is not as readily available, he said.
Chao said May 15 that the administration is considering “creative models” to ensure the infrastructure plan benefits urban and rural areas.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721521&vname=dennotallissues&fn=111721521&jd=111721521
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Freight Rail Is A Key To The U.S. Economy, Infrastructure
May 16, 2017 | Herald and News
By Ian Jefferies
With spending levels set through September, the Senate digging in on health care and the U.S. House of Representatives now turning to tax reform, some may believe infrastructure will take a backseat to these priorities. Yet observers of the legislative process know that policymaking is always occurring, even if it is not always in plain sight.
While any infrastructure package will be complicated, the private freight rail sector — unique in the discussion as the industry is not necessarily seeking federal dollars — offers straightforward advice: advance public policies that both enhance public spending and spur private infrastructure investment.
We stand on firm ground, as one train can take hundreds of trucks off the road, thereby lessening road and bridge deterioration. The industry has also spent $635 billion since partial deregulation nearly 40 years ago — money the industry pays so taxpayers do not.
As lawmakers turn their attention to actual legislation, our industry offers recommendations as a starting point in this sure-to-be lengthy process, simply for the transportation part of infrastructure:
1. Stop applying Band-Aids to the insolvent Highway Trust Fund, the pool of money funded almost solely by the gas tax and which is used to fund federal and state transportation infrastructure projects. Because the gas tax does not cover operating expenses, and because commercial users such as trucks do not pay for their proportional use of roads, taxpayers have subsidized the fund to the tune of $143 billion since 2008. We need measures such as a weight distance fee that accounts more realistically for commercial road use.
2. Do not make things worse by pushing heavier trucks onto transportation networks. Any federal program that boosts truck weight limits at the federal level further subsidizes commercial highway users at the expense of taxpayers, exacerbates deterioration of crumbling infrastructure and tilts the policy scale against a critical freight rail industry. Trucks today do not cover their current impact and heavier trucks will only force taxpayers to further bankroll the underpayment of even heavier trucks, according to U.S. Department of Transportation data.
3. Enact tax reform to spur economic growth and generate revenues needed for sustainable funding. We need a simpler and fairer tax code, reducing the business rate to a globally competitive level to broaden the tax base, enhance U.S. economic development and promote growth. Divisive items related to tax reform must not impede the larger goal to enhance competition, which for railroads and American industry in general, will lead to more domestic spending.
4. Streamline government processes that will similarly unshackle the business community and fuel an American renaissance not seen for decades. By generating policies that focus more on desired outcomes than prescriptive steps, cutting red tape in the permitting process and by actually communicating with the private sector, long-delayed infrastructure projects may finally come to fruition. Not by eradicating regulation, but by instilling good government principles — transparency and complete and sound science — railroads, trucks and other transportation stakeholders would gain efficiencies that make room for greater innovation and investment.
5. Ensure the vitality of private infrastructure, namely a freight rail network that serves nearly every industrial-, wholesale-, retail- and resource-based sector of the economy.
This means Washington regulators ditching numerous proceedings to re-regulate freight rail, most notably a proposed measure called forced access, which would allow the government to order one rail company to use its own privately owned facilities on behalf of a competitor. Unneeded government meddling in the operations of this 140,000 mile network that keeps trucks off the road, reduces emissions and supports 1.5 million jobs nationally, is in direct opposition to the larger goal at hand.
Fixing U.S. infrastructure, particularly roads and bridges, is no small task. But by spurring private investments and ensuring the vitality of freight rail, a messy picture is at least a bit neater.
Ian Jefferies is senior vice president of government affairs at the Association of American Railroads. He wrote this for InsideSources.com. Part 2 on Wednesday will deal with short-line railroads.
http://www.heraldandnews.com/members/forum/wire_commentary/freight-rail-is-a-key-to-the-u-s-economy/article_1e33afc7-3b11-5203-8ee9-2b15dc53db94.html
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(ACC Mentioned) Scorned Law May Be Environmentalists’ Tool to Protect EPA Data
May 16, 2017 | BNA Daily Environment Report
By Rachel Leven
A law long scorned by environmentalists may now be a tool for protecting information on the EPA's website as the Trump administration purges references to climate change.
Progressives have dismissed the Data Quality Act as a tool for industry groups to poke holes in information in government reports and reviews. But now the father of the law says environmentalists are quietly approaching him about the possibility of turning the law on a White House that has taken down information from the Environmental Protection Agency website, including a climate science page that stated, “It is extremely likely that human activities have been the dominant cause of the warming.”
“They're sort of walking timidly up to the confessional,” Jim Tozzi, who founded the Center for Regulatory Effectiveness to oppose overreaching regulation, told Bloomberg BNA.
But the Data Quality Act is far from a sure fire win for these groups, attorneys said. The law is intended to ensure agencies would have to respond to public concerns related to press releases, reports and more—actions that wouldn't constitute “final agency actions” in court. It allows the public to petition federal agencies to correct perceived deficiencies in government data. But still unclear is whether courts can enforce the law's requirements.
The EPA has recently been updating its website, including deleting pages related to climate change, much to the concern of scientists and other climate advocates. The EPA didn't respond to Bloomberg BNA's message requesting comment. There are few other laws in place that set boundaries on what the EPA can and can't do with its website and data, attorneys said. One attorney says that is partially because the EPA hasn't previously needed laws to guide what data will or won't appear on its website.
“Stronger laws haven't been needed before,” Romany Webb, an attorney at the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA. “Hopefully, the culture of transparency will continue, but that remains to be seen.”
Would It Be Successful?
If environmental groups choose to use the Data Quality Act, they would be taking up a tool commonly used by industry groups.
Requests received in the initial years following the law's passage—from 2002 to 2005—ranged from one by the Cooler Heads Coalition in 2003 to remove the U.S. Climate Action Report 2002 from its website to one from the Center for Regulatory Effectiveness and the American Chemistry Council saying a proposal to require disclosure of the chemical diisononyl phthalate in the Toxics Release Inventory was flawed and should be redone.
The Office of Management and Budget and then EPA wrote guidelines for implementing the law that distinguish between highly-influential and other types of information, and provide ways to request changes to information releases. The EPA has 60 days to respond to any requests for corrections made under the Data Quality Act, which can be appealed to the agency's chief information officer and ultimately to the courts.
Then it gets murky. No court has yet found the act to be judicially reviewable. For example, Sidney Shapiro, vice president of the Center for Progressive Reform, pointed to a March 2006 U.S. Court of Appeals for the Fourth Circuit decision in Salt Inst. v. Leavitt, that found the Salt Institute couldn't establish that it had grounds to bring the lawsuit.
“It basically means all you can do is complain to the agency,” Shapiro told Bloomberg BNA. “But other than the White House enforcement, there's no enforcement.”
But Tozzi, who worked at OMB under five presidential administrations, and Karl Bourdeau, a principal in the Washington office of Beveridge & Diamond, P.C., said this isn't a settled issue.
Bourdeau pointed to a separate ruling by the U.S. Court of Appeals for the District of Columbia Circuit in Prime Time International Co. v. Vilsack, where the court reviewed an agency decision under the Act in a 2010 lawsuit against the U.S. Department of Agriculture “without ever saying it had jurisdiction.”
“It's a huge issue because if it can be judicially reviewed, then you can hold the agency's feet to the fire,” Bourdeau said. “If not, it's kind of a paper tiger.”
Even Shapiro said it could be different for environmentalists given the scientific consensus surrounding climate change, although he added, “I think most groups don't want to legitimize it as a tool that industry could use to attack the information or data behind the preventative actions by agencies.”
Other Options
Other options are limited, attorneys said. Laws from the E-Government Act of 2002 (Pub. L. No. 107–347) to the Freedom of Information Act (Pub. L. No. 104-231) tell the government to post policies and processes, disclose certain grants and give the public additional information, when requested.
However, these laws are generally broad and don't dictate that the EPA must use its website the way it has been used, Webb said. For example, the EPA has generally become a hub of climate data and information for scientists and the public. But outside of regulations, that kind of information no longer needs to be housed on the EPA website, she said.
An influx of Freedom of Information Act requests flooding the EPA for data and documents related to past internal deliberations is expected, Webb said. And while some are banking on the Data Quality Act as a path forward of opposition, “it doesn't look like a particularly fruitful path to go down” given past rulings by federal courts that the actions can't be judicially reviewed.
In the past, the EPA has operated under a 1983 “fishbowl memorandum” that says communicate with everyone and do so openly, Webb said. But it's too soon to tell what this EPA will do of its own volition on this front, she said.
“We don't know what the new website is going to be like,” Webb said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721500&vname=dennotallissues&fn=111721500&jd=111721500
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China Likely to Fill Some, But Not All, of U.S. Climate Vacuum
May 16, 2017 | BNA Daily Environment Report
By Dean Scott
Those looking for a silver lining on climate change after the November election offered a ready answer for what a Trump administration retreat would bring: China rushing into the breach to fill the vacuum of climate leadership.
But is China—which a decade ago overtook the U.S. as the world's top greenhouse gas emitter—really about to be the global climate savior?
China analysts along with former UN officials and climate negotiators say the answer—for a country that had to be prodded for decades to sign on to a global climate deal—is more nuanced.
China has boasted that it will remain in the Paris climate pact even if President Donald Trump ultimately makes good on his campaign vow to withdraw from the accord.
But a Trump retreat from the pact would sideline China's toughest adversary at the negotiating table—just as crucial talks are getting underway to implement the 2015 Paris deal. Those include transparency and verification requirements to ensure that the nearly 200 nations that signed on to the Paris Agreement make measurable progress on their climate actions; China has traditionally pushed for weaker accounting measures citing concerns over its sovereignty.
A U.S. vacuum on those issues, one that leaves China alone at the head of the table, is likely to result in weaker transparency rules, not stronger ones, according to several former State Department climate negotiators.
On the other hand, China has made more progress than expected just a few years ago on several key climate indicators, including cutting the carbon intensity of its economy and outstripping every other nation in renewable energy investment.
Some analysts now say China may be ready as early as 2020 to grab headlines by strengthening its current climate pledge, which is to peak it carbon emissions by 2030 or sooner, after which they would presumably decline.
What would a stronger pledge look like? It might, analysts say, offer to peak emissions well before 2030, and perhaps within the coming decade.
Already, Trump Undercut Pledge
Trump isn't expected to decide whether the U.S. will withdraw from the Paris deal at least until June. The White House says a decision—originally slated to be made before he and other leaders meet at the May 26-27 Group of Seven summit in Italy—won't be made until after the meeting.
Of the nearly 200 nations that signed onto the Paris Agreement in December 2015, 145 already have ratified or otherwise formally joined the pact. If the U.S. withdraws, it will join only two nations—Syria and Nicaragua—that are not in the deal.
But early indications are that Trump's rollback of Obama administration climate actions—including a move to rescind power plant carbon pollution limits—would almost guarantee the U.S. won't hit the pledge it made toward the Paris pact: to cut greenhouse gas emissions 26 percent to 28 percent from 2005 levels by 2025.
Although Obama's policies also would likely have produced in the rosiest scenario a 22.6 percent to 24.9 percent reduction, Trump's actions targeting those policies would result in only a 10.2 percent to 12.6 percent reduction from 2005 levels, according to a May 1 analysis by Resources for the Future analyst Marc Hafstead.
An Unlikely Global Leader?
Whether China is ready to fill a leadership vacuum on climate is a complex question given it was largely prodded to embrace the Paris deal at the urging of the Obama administration, according to Sen. Ben Cardin (D-Md.), the ranking member of the Senate Foreign Relations Committee.
“Now, China might think that they can become a more significant global player, which has not always been something that they've been that concerned about in the past,” Cardin told Bloomberg BNA. “And they may try to fill that” gap in leadership, he said.
But Cardin cautioned against what some see as China grabbing the climate battle flag from a retreating Trump administration. China has a fairly consistent approach on foreign policy that tends to project its power and influence more subtly—and has tended to shy away from being seen as a leader, particularly in global agreements, Cardin said.
Assuming more of a leadership role would conflict with one of China's most consistent arguments against it taking on more dramatic climate action: that its obligations are more in line with other rapidly developing nations such as India and Brazil, Cardin said.
“They are a country with continuing and growing energy needs and they know they have to meet that need,” Cardin said. “But they have little interest in global responsibility or joining global efforts,” Cardin said. “That's not in their DNA.”
China Clean Energy Progress
China, at least by some measures, has reason to tout its climate leadership: it has been the world's the top clean energy investor since 2012 and its renewable energy industries provided roughly 3.5 million jobs in 2015, exceeding even the 2.6 million employed in the country's oil and gas sector, according to the International Renewable Energy Agency.
By contrast, the U.S. employs less than one million in renewable energy jobs, according to the World Resources Institute.
China also has been unwavering in its support of the Paris pact since Trump's election. China President Xi Jinping vowed only days before Trump's January inauguration that China will “continue to take steps to tackle climate change and fully honor its obligations” under the climate accord, adding that “all signatories should stick to it instead of walking away.”
Xi continues to back the pact in talks with other world leaders, including a call to newly elected French President Emmanuel Macron on May 9. Xi said the two nations should work together to “protect the achievements of global governance, including the Paris Agreement,” the Chinese Foreign Ministry reported.
Zhang Jun, director general of the Chinese Foreign Ministry's International Economics Department, wrote that China has shown a “strong sense of responsibility” on multiple fronts to combat climate change. In an April 19 article published by the ministry, he noted that Xi put the issue front and center as China hosted its first-ever Group of 20 summit in Hangzhou, China in September 2016 and worked to ensure the U.S. and China would join the Paris deal during the G-20 summit.
A Battle for Public Opinion
The Paris Agreement entered into force Nov. 4, 2016, as the first global climate deal to include actions by developed and developing nations alike. It includes a goal set by the nearly 200 nations to keep average temperatures from rising more than 2 degrees Celsius (3.6 degrees Fahrenheit) since the pre-industrial era and pursue efforts to hold the line at a 1.5 degree Celsius increase (2.7 F) this century.
A few climate advocates have begun to question whether there is much value in keeping the U.S. in the Paris deal when it is clearly undercutting its own climate actions, but most environmental groups argue for staying in the pact. Trump advisers are divided on the issue with Secretary of State Rex Tillerson and others arguing the U.S. should stay at the table; Environmental Protection Agency Administrator Scott Pruitt counters that staying in the deal could complicate his legal case for rolling back the EPA power plant carbon limits.
“At this point it's a battle for public opinion,” one top adviser to Pruitt told Bloomberg BNA May 10, with leading U.S. companies including Apple, DuPont, Google, and Microsoft pushing Trump to stay in the deal. “It's the war of the op-eds,” the Pruitt adviser said, suggesting that administration voices wanting the U.S. out of the deal seemed to have more momentum in recent days. But the final decision “will be a close one,” the adviser said.
Don't Expect China to Foot the Bill
But is China, which overtook the U.S. as the world's top emitter nearly a decade ago and today emits nearly double the U.S. total, really prepared to fill the vacuum, and for how long? There is little expectation, for example, that China will step in to foot the bill for what could be a gaping hole in U.S. climate finance, with Trump already zeroing out international climate aid. That includes Obama's pledge of $3 billion over four years to a new UN Green Climate Fund to assist developing countries fulfill their climate ambitions.
Obama was only able to make a total of $1 billion in payments before Trump took office.
“I don't think they're prepared to say they'll replace the U.S. or step into the kind of role” of filling the climate funding gap, according to Alden Meyer, who tracks the UN climate talks as director of strategy and policy for the Union of Concerned Scientists.
“Some of the Chinese I've talked to are even resentful that they're being asked to do that,” Meyer said, given that the U.S. remains the world's largest historical emitter, having pumped more emissions into the atmosphere over the last hundred years or so than any other single nation.
But China has always preferred supporting its own climate finance instruments, including its South-South Climate Cooperation Fund, to which Xi pledged $3.1 billion in 2015.
It also backs the Asian Infrastructure Investment Bank, which opened its doors in Beijing in 2016. The AIB recently awarded its first loan to India—a total of $160 million—to the state of Andhra Pradesh to improve power distribution and transmission along India's southeastern coast.
Meyer and others closely watching China for signs of its continued climate commitment in the face of possible U.S. withdrawal said they'll also be monitoring the upcoming Asian infrastructure forum, known as the Belt and Road Forum for International Cooperation in Beijing. The May 14-15 meeting is meant to advance a key foreign policy priority for Xi: to invest billions in new roads and other infrastructure to improve access for Chinese firms.
The Long View on U.S. Pledges
Christiana Figueres, who oversaw six years of UN climate summits in the run-up to the Paris deal, said she is bullish on China's climate actions going forward.
China takes the long view, Figueres told Bloomberg BNA: it has watched U.S. commitment to international climate action ebb and flow, from 2001 when President George W. Bush essentially withdrew the U.S. from the Kyoto Protocol, to Obama's return to the UN climate talks, to Trump's reversal of some of Obama climate actions.
China “established this direction years ago and they're not going to change [it] just because the United States government—which they know is a government that comes in and out,” often reversing the climate policy of the previous administration, the former head of the UN climate secretariat said.
William Cline, a senior fellow at the Peterson Institute for International Economics, agreed. “The Chinese tend to take the long view, and they would calculate that this administration is not going to last forever,” Cline told Bloomberg BNA. “There will be a time when the U.S. thinks this is our most serious problem—as the previous president [Obama] did,” Cline said.
Figueres said the broader impact of the Paris pact—beyond the specific actions countries pledged on climate—was to reassure energy investors that the world's nations were pivoting toward low-carbon energy, just as renewable sources are becoming increasingly competitive with fossil fuels.
“That is the huge difference from where we were 10 years ago, where it was really necessary for the U.S. and China to reach an agreement with each other because actions on climate change was perceived as a huge cost,” Figueres said.
Assessing China's Climate Progress
Analysts who closely track China's climate and energy actions, such as Ranping Song of the World Resources Institute, say China gets too little credit for redoubling efforts to cut its carbon intensity, a measurement of carbon dioxide emission per unit of gross domestic product.
China's initial carbon intensity pledge, unveiled by China Premier Wen Jiabao just before the 2009 Copenhagen UN climate summit, was to cut carbon intensity 40 percent to 45 percent from 2005 levels by 2020.
While its 2014 pledge to peak emissions before 2030 was seen as significant concession—China had previously resisted taking on any such commitments to reduce its overall emissions—it also further strengthened its 2009 carbon intensity in the run-up to the 2015 Paris talks. China's revised pledge is a carbon intensity reduction of 60 percent to 65 percent by 2030. Its Paris pledge also calls for getting one-fifth of its energy from non-fossil fuel sources by that date.
Song, the WRI analyst, said those actions, taken together with flattening coal consumption and closures of long-planned power plants, “are very concrete indicators that China is taking action in real time” on climate. “Those are not targets—those are achievements,” he said.
China earlier this year announced it would stop building 103 coal-fired power plants, most only planned but some already under construction, and its coal consumption has flattened, after likely peaking in 2013.
China's carbon dioxide emissions declined 1 percent last year consistent with the nation's declining coal demand, according to an International Energy Agency report in March.
“There were several reasons for this trend: an increasing share of renewables, nuclear and natural gas in the power sector, but also a switch from coal to gas in the industrial and buildings sector that was driven in large part by government policies combating air pollution,” the report said.
A Beachhead Until the U.S. Returns
For climate negotiators who spent years during the Obama administration prodding China and other countries toward the 2015 deal, there is still hope local and state governments and corporations can chip away at emissions to help keep the U.S. on track toward its Paris pledge.
Taken together, those efforts “are not going to make up for what the Trump administration does federally” to rollback domestic climate policy, according to Andrew Light, a former State Department climate negotiator.
“But it does give us this beachhead—it allow us to put on a platform in a way that can be immediately launched, either at a time that this administration comes around or we get a new administration, Republican or Democratic, willing to do something on this,” Light said.
“I think that eventually happens,” Light said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111721499&vname=dennotallissues&fn=111721499&jd=111721499
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Chamber Appeals GHG Cap-and-Trade Ruling To State High Court
May 15, 2017 | Inside EPA
The California Chamber of Commerce is asking the state's high court to review a recent appellate court ruling that upheld the state's greenhouse gas allowance auctions under cap-and-trade, saying that if allowed to stand the ruling “would mark a revolution in the established law governing taxation in this state . . .”
The chamber's appeal in California Chamber of Commerce v. California Air Resources Board (CARB) joins a petition to the high court filed last month by the Pacific Legal Foundation, which represents plaintiffs in a companion case, Morning Star Packing Co., et al., v. CARB.
In a 2-1 April 6 decision, California's Third Appellate District Court of Appeals upheld a 2013 state superior court ruling backing the auctions' legality. The ruling rejected industry claims that the auctions represent an illegal tax under the state's Proposition 13 because the law authorizing CARB to hold the auctions -- AB 32 of 2006 -- was not passed by a two-thirds vote.
The appellate panel majority -- Associate Justices Elena J. Duarte and M. Kathleen Butz -- agreed with CARB's arguments that the auctions are not a tax and regulated entities' participation in the auctions is "voluntary."
But Presiding Judge Harry E. Hull in a dissenting opinion agreed with industry that the allowance sales are illegal taxes.
“While CalChamber remains a strong supporter of a cap-and-trade program to reduce GHGs, it is clear that revenues generated by [CARB's] AB 32 implementation program are legally proceeds of a tax that required legislative authorization with a 2/3 majority vote,” said Denise Davis, a chamber spokeswoman, in a May 15 press release. “As indicated throughout the petition for review, this case involves serious issues of widespread statewide impact and importance. The appeal is being filed today to validate that position.”
The chamber's 46-page petition states in part that the appellate court's decision warrants the Supreme Court's review because it turns on “serious questions of constitutional law that have widespread statewide impact and importance,” and because the court of appeal's decision “creates substantial inconsistencies with past precedent and legal uncertainty.”
If allowed to stand, the appellate court's ruling “would mark a revolution in the established law governing taxation in this state, which has been the subject of much analysis by this court over the 40 years since Proposition 13 passed,” the petition states. “Proposition 13 requires that a tax enacted by the state Legislature must be approved by a two-thirds vote.”
Though the high court has recognized certain “narrow exceptions” to the definition of taxes subject to the two-thirds rule, each has been “carefully defined and circumscribed in such a way as to prevent the exceptions from entirely swallowing Proposition 13's 2/3 rule.”
The chamber charges that the appellate court majority “abandoned this court's measured approach and opened the door to the effective nullification of Proposition 13.”
https://insideepa.com/daily-feed/chamber-appeals-ghg-cap-and-trade-ruling-state-high-court
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Lawmakers In Sync With Trump Zero In On Social Cost Of Carbon
May 16, 2017 | E&E Daily
By Arianna Skibell
Key Republican senators on the Environment and Public Works Committee are weighing in on President Trump's deregulatory agenda and asking U.S. EPA to pay special attention to climate rules.
Last month, EPA put out a call to the public for recommendations of rules that should be repealed, replaced or modified (Greenwire, April 12).
The public comment period closed yesterday, and now agency officials will identify and select rules that eliminate jobs, are outdated or ineffective, impose costs that outweigh benefits, or implement now-repealed executive orders.
In a letter to Samantha Dravis, EPA's associate administrator for policy and newly instated regulatory reform officer, the senators asked EPA officials to pay particular attention to rules that rely on either the social cost of carbon or co-benefits to justify the cost burdens on the economy.
EPW Chairman John Barrasso (R-Wyo.) and seven other Republican committee members — Sens. Shelley Moore Capito of West Virginia, Joni Ernst of Iowa, Roger Wicker of Mississippi, Deb Fischer of Nebraska, Mike Rounds of South Dakota, Jim Inhofe of Oklahoma and John Boozman of Arkansas — signed the letter.
"As you review regulations pursuant to these Executive Orders, we request that you give particular attention to regulations that relied on insensible cost-benefit analyses as well as regulations that were developed through flawed procedures that evaded mandatory review processes," they wrote.
The role and function of cost-benefit analysis has been a topic of recent debate (E&E Daily, May 2).
The social cost of carbon is an estimate of the monetary damages incurred from increases in greenhouse gas emissions. Co-benefits are added when climate change is mitigated.
Conservatives question their accuracy as measures of cost and benefits.
"The Environment and Public Works Committee has highlighted the fact that the metrics used by the prior administration to quantify the 'social cost of carbon' suffer from procedural flaws and troubling substantive assumptions," the senators wrote.
"We request EPA re-evaluate any rules that relied on those metrics to justify regulatory impact."
The senators reference the regulatory impact analysis for the Mercury and Air Toxics Standards, finalized in 2011 to address emissions of hazardous air pollutants from power plants. When EPA finalized the rule, the letter states, the agency said the health benefits ranged between $37 billion and $90 billion, when co-benefits were factored in.
The direct benefits were $4 million to $6 million, compared with the $9.6 billion in costs, they said.
"We request that you review rules that rely on such purported benefits," the senators wrote.
The lawmakers also offered their support for Trump's executive order that established a task force to review rules for potential revision, repeal or replacement.
They praised a separate order that directs agencies to review rules that burden efforts to develop domestically produced energy resources.
https://www.eenews.net/eedaily/2017/05/16/stories/1060054577
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