Preview Newsletter
ACC AM 17/05/2017
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Bodine Praised As EPA Enforcement Pick But Slow Selections Criticized
May 16, 2017 | Inside EPA
Susan Bodine's nomination to lead EPA's enforcement office is generally winning praise from current and former agency officials, who say she will bring competence and experience to a relatively inexperienced EPA leadership team that faces significant struggles... -
Murkowski Waits for Nominees' Paperwork
May 16, 2017 | E&E News PM
By Geoff Koss & Hannah Northey
Missing paperwork is holding up Senate confirmation hearings for two of President Trump's nominees to the Federal Energy Regulatory Commission. -
(ACC Mentioned) Pace of EPA New Chemical Reviews Picks Up, Allaying Concerns
May 17, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical industry concerns that new compounds aren't being approved in a timely way are being allayed by newly posted EPA decisions. -
Green Chemistry in 2017: The State of States
May 16, 2017 | The National Law Review
By Sheila A. Millar, Nathan A. Cardon, & Anushka N. Rahman
Since our last report covering state-level green chemistry initiatives, more states added green chemistry regimes, and some states that already had green chemistry legislation in place issued updates. In many cases, these changes will impose additional burdens... -
(ACC Mentioned) Research Says Plastics-to-Fuel Technology Reduced Greenhouse Gases
May 16, 2017 | Plastics News
By Jim Johnson
Using pyrolysis to convert unrecycled plastics into ultra-low-sulfur diesel fuel stacks up favorably to similar fuel made from crude oil, new research shows. -
BRT Seeks to Streamline Agencies' Chemical Programs
May 17, 2017 | Inside EPA
The Business Roundtable (BRT), the group that represents Fortune 500 CEOs, is urging the Trump administration to take steps to streamline EPA and the Occupational Safety and Health Administration's (OSHA) programs governing industrial chemicals as it considers... -
ECJ Sides with Echa on EDC Classification of DEHP
May 17, 2017 | Chemical Watch
By Clelia Oziel
The European Court of Justice (ECJ) has dismissed legal action challenging Echa's 2014 decision to identify the phthalate DEHP as an endocrine disruptor for the environment. -
(ACC Blog) Plastics-to-Fuel Turns “Waste” Plastics into a Valuable Resource – While Saving Other Resources in the Process
May 16, 2017 | American Chemistry Matters
By Steve Russell
A new study by Argonne National Laboratory (ANL), part of the U.S. Department of Energy, found that converting non-recycled plastics into diesel fuel can reduce greenhouse gas emissions by up to 14 percent, water consumption by up to 58 percent... -
Will Pruitt Harpoon Climate Doubters' 'Great White Whale'?
May 17, 2017 | BNA Daily Environment Report
By David Shultz & Andrew Childers
EPA Administrator Scott Pruitt has vowed to roll back Obama-era rules capping greenhouse gases from power plants and oil wells, but some conservative groups want him to go further and uproot the legal foundation for the agency's climate regulations. -
White House Says Offshore Energy Order Poses Minimal Cost to Federal Government
May 16, 2017 | Natural Gas Intelligence
By Charlie Passut May
The White House's Office of Management and Budget (OMB) said an executive order (EO) signed by President Trump last month in support of offshore energy development, including oil and gas, will have a negligible cost impact to the federal government. -
Maritime Sanctuaries Must Be Protected from Offshore Oil Drilling
May 17, 2017 | The Hill - Congress Blog
By Rep. Jimmy Panetta (D-CA)
President Donald Trump wants to open up our national marine sanctuaries to offshore oil drilling. -
Spurned Shale Play's Getting Love as US Gas Prices Rebound
May 17, 2017 | BNA Daily Environment Report
By Naureen S. Malik
A natural gas basin that helped kickstart the shale boom a decade ago is getting a new lease on life as the market recovers. -
Conn. Sues EPA Over Pa. Power Plant
May 16, 2017 | E&E News
By Sean Reilly
Connecticut today ratcheted up its campaign for a crackdown on a Pennsylvania power plant, filing a lawsuit to prod U.S. EPA to act on a petition that ultimately seeks to cut the facility's output of nitrogen oxides. -
Ohio Property Owners Sue to Stop 250- Mile Pipeline
May 17, 2017 | BNA Daily Environment Report
By Alex Ebert
More than 60 property owners are suing a gas company and the Federal Energy Regulatory Commission to halt construction of a 250-mile natural gas pipeline across Ohio and Michigan -
(ACC Mentioned) GOP Optimism on Chemical Plant Resolution Fades with Challenges
May 17, 2017 | BNA Daily Environment Report
By Sam Pearson
The expiration of the Congressional Review Act clock before it could be used against the chemical security rule is a win for public health and labor groups, though the final outcome of the regulatory process is less clear. -
Wilson: U.S. Chemical Safety Rules Need to be Updated
May 16, 2017 | Houston Chronicle
By Mike Wilson
During 13 years of work as a professional firefighter, paramedic and EMT, I sometimes responded to an emergency at an industrial facility. -
McAuliffe Aims to Regulate Power Plant Emissions
May 16, 2017 | Washington Post
By Alan Suderman
Gov. Terry McAuliffe announced plans Tuesday to regulate emissions from power plants, saying Virginia “cannot afford to sit idly by” as President Donald Trump rolls back his predecessor’s efforts to battle climate change. -
Tillerson Gives Nod at Arctic Meet to Climate Change Action
May 16, 2017 | Reuters (In The New York Times)
By Timothy Gardner
U.S. Secretary of State Rex Tillerson signed an agreement recognising the landmark Paris climate accord at a meeting of Arctic nations in Alaska on Thursday, but said President Donald Trump was not rushing to decide whether to leave or weaken U.S. commitments to the pact. -
Senate Panel Poised to Markup Controversial Regulatory Reform Bills
May 16, 2017 | Inside EPA
The Senate Homeland Security and Governmental Affairs Committee is slated May 17 to markup a package of bills aimed at overhauling how EPA and other agencies craft rules, guidance and other policies, including a controversial measure that environmentalists... -
Groups Ask Court to Toss Trump Executive Order
May 16, 2017 | E&E News PM
By Arianna Skibell
Environmental and public interest groups have asked a federal court to declare one of President Trump's regulatory executive orders unlawful and set it aside.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News
Transportation News - There are no clips to report at this time.
Environment News
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Bodine Praised As EPA Enforcement Pick But Slow Selections Criticized
May 16, 2017 | Inside EPA
Susan Bodine's nomination to lead EPA's enforcement office is generally winning praise from current and former agency officials, who say she will bring competence and experience to a relatively inexperienced EPA leadership team that faces significant struggles advancing the administration's deregulatory agenda.
But her nomination, the first to the agency after Administrator Scott Pruitt, highlights the Trump administration's slow pace in nominating others to top agency posts, raising new fears from deregulatory advocates that the administration will not be able to implement its aggressive plans to roll back rules.
The Bodine pick means things “are starting to move like two-year-old molasses,” says one critic of EPA rules, who questions EPA's ability “to get anything done” without political appointees in place.
The White House announced its intent to nominate Bodine to lead EPA's Office of Enforcement & Compliance Assurance (OECA) May 12. She brings extensive Capitol Hill and EPA experience, including stints as EPA waste chief during the George W. Bush administration and general counsel for the Senate Environment & Public Works (EPW) Committee. She previously served on the House Transportation & Infrastructure Committee and also worked at the Barnes & Thornburg law firm, where she represented industry clients.
Given her experience, she is also seen as a policy expert who will provide key perspective to Pruitt's team, which has little EPA expertise and has already faced early struggles advancing his deregulatory agenda.
She is thought to be in a position to help Pruitt advance several priorities, including speeding Superfund cleanups and possibly reorganizing the enforcement office.
However, Bodine's nomination for OECA is something of a surprise as she was thought to be a candidate for deputy administrator -- a role that has yet to be filled. Several sources say it is highly unusual for an OECA nominee to be named before the agency's No. 2 in command as well as an air office head or general counsel -- roles that are seen as a higher priority.
These sources say that it is likely that Bodine's nomination was announced first because she had been vetted and was ready, but that it is also an indication that Pruitt and the White House are having difficulties filling prime positions.
While announcing a choice for OECA before any other position is “strange . . . I think what happened was they saw Susan as an asset and they wanted to give her a spot they thought would work for her. And this is clearly a spot not a lot of people are fighting for, and she said yes, and they gave it to her,” one former EPA enforcement official says.
The other positions are more “hot potatoes” and will have “tough confirmation hearings.”
Former EPW staff director Andrew Wheeler, who is now a coal industry lobbyist, has long been considered a deputy administrator candidate but has not been nominated. Similarly Bill Wehrum, who was acting air chief for George W. Bush and is now at Hunton & Williams, has also long been thought to be Trump's pick to run the air office but no announcement has been forthcoming.
But sources note that Bodine's selection does not necessarily mean other positions will be announced soon, given continued infighting among top officials, who are said to have “vigorous differences of opinion about the nominee” for second-in-command at EPA.
The critic of EPA rules says the early fighting over who should be tapped for various agency jobs has never been resolved.
“I don't think Trump has given anyone the clout in the White House to tell the factions that . . . we are going to take two from Column A, two from Column B, two from Column C and that's it."
Such an approach would be “better than having nobody” in upper-level positions because career civil servants serving as acting office heads will not advance Pruitt's agenda, the source says.
'Holding Polluters Accountable'
Bodine could not be reached for comment and former Obama OECA chief Cynthia Giles declined to comment.
But EPW Chairman John Barrasso (R-WY) praised her nomination and touted her “extensive experience working both on Capitol Hill and previously in leadership at the EPA.”
He said she is “committed to finding commonsense ways to protect America's land, air and water, In this new role, I know that she will work to help communities and small businesses comply with the law, while holding polluters accountable,” he said in a statement.
That sentiment was evident from others. Granta Nakayama, who led OECA during the George W. Bush administration and is now at King & Spalding, tells Inside EPA May 15 that Bodine is a “fine environmental attorney” who “reads the statutes and parses the words and does the hard work. She's . . . rigorous in that sense.
He adds that her experience on the Hill in drafting legislation and being involved in debates over legislative language will be “a strength” at OECA because she has “personal knowledge” of the background to those laws. She is also “an experienced hand in Washington and knows how to get things done. She is very practical and looks for solutions that are going to be workable for everybody.”
As far as why Bodine would want to take a job in what has been a chaotic administration, Nakayama says it “may sound corny but she is public-service oriented. . . . She is not ideological.”
The other former EPA enforcement official says Bodine may want a job at an agency that is “not a happy place” because enforcement is generally tougher under Republican administrations than Democratic ones, and because Pruitt is expected to take enforcement of “the rule of law” seriously.
But Bodine's Hill experience means she is also “very sensitive to the political side of enforcement and that is where this administration can call on her more than anything else.”
The source notes that Republicans and industry complained about the Obama administration's OECA taking “aggressive legal positions” and “pushing the envelope beyond what the regulated community expected” by using so-called Next Generation enforcement techniques such as infrared monitoring.
“So having her there and being sensitive to” these issues is good, the source says. “She does know EPA, she has had exposure to a lot of the political enforcement issues at EPW, and that's a good fit for them. . . . And from Pruitt's perspective, it shows he is taking enforcement seriously by putting someone in there who knows what is wrong with the enforcement office and can fix it.”
OECA Overhaul
However, this source does not rule out the possible breaking up of OECA, as has been under consideration by Pruitt, but says it is probably lower on the priority list than it was before the agency received nearly full funding from Congress for the rest of the fiscal year.
Another former agency official is also “encouraged” that Bodine's pick may mean EPA will maintain OECA rather than break it apart.
Her main challenges will be budgetary, including how to handle drastic proposed cuts for fiscal year 2018, along with federal/state relations, and whether Bodine will be given full authority over OECA or whether the administration will “hamstring” her, according to two former EPA officials.
Pruitt's overarching deregulatory effort is also a concern but the second former official says enforcement may be a way to expedite cleanups, something Pruitt has said he wants to prioritize.
Additionally, Elliott Laws, who served as waste office chief during the Clinton administration and is now at Crowell & Moring, is praising Bodine's selection. “While I don't envy her challenge, I think bringing Susan back to the agency is an excellent idea,” he says, because she knows EPA and staff knows her.
“Having a familiar face back at EPA in a senior role is a plus for staff morale. Bringing in someone with her knowledge of the agency and the issues facing it can only be a positive.”
Meanwhile, environmentalists are less than enthusiastic about Bodine's nomination but their reaction appears less about her and more about the administration's deregulatory agenda in general.
“What are they going to enforce?” one environmentalist asks, noting that Pruitt's main objective is to undo rules.
A second environmentalist expresses concern over a less-aggressive enforcement program, and says Bodine as OECA chief would only emphasize the critical “role that citizen suits are going to play” in enforcing environmental laws.
A third environmentalist raises questions about Bodine's opposition to EPA's 2014 coal ash rule -- a rule that utilities are now asking the agency to review.
https://insideepa.com/daily-news/bodine-praised-epa-enforcement-pick-slow-selections-criticized
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Murkowski Waits for Nominees' Paperwork
May 16, 2017 | E&E News PM
By Geoff Koss & Hannah Northey
Missing paperwork is holding up Senate confirmation hearings for two of President Trump's nominees to the Federal Energy Regulatory Commission.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) told reporters today that she hasn't received all the papers needed to schedule confirmation hearings for Neil Chatterjee, a top energy aide for Senate Majority Leader Mitch McConnell (R-Ky.), and Pennsylvania regulator Robert Powelson. The Senate committee posts notices of hearings a week in advance.
"Our plan is, as soon as we get that, to go ahead and notice it up," Murkowski said, "hopefully really soon."
The White House nominated Chatterjee and Powelson earlier this month amid mounting pressure over the depleted commission's lack of a quorum and inability to make high-profile pipeline approvals.
The five-seat panel is currently led by acting Chairwoman Cheryl LaFleur and Colette Honorable, both Democrats, who have been unable to make high-profile decisions since former FERC Chairman Norman Bay abruptly left in February, depriving the commission of a quorum.
The Energy Committee's top Democrat, Sen. Maria Cantwell of Washington, told reporters earlier this month that Democrats had submitted a name to the White House for consideration as a replacement for Honorable, who announced she would not seek a second term.
Honorable has indicated she's willing to stay on the commission beyond June 30, when her term expires, if necessary. She would be able to serve until the end of this year.
The Democrats' pick is expected to be paired with the third GOP vacancy on the commission, a slot expected to go to Jones Day lawyer Kevin McIntyre.
Former Republican FERC Commissioner Tony Clark said in a recent interview with E&E TV that it typically takes four or five months to get candidates confirmed, but said it could happen faster given FERC's lack of a quorum (E&ETV's OnPoint, May 11).
"There's certainly an urgency to the fact that the commission is down below a quorum, which has not happened in the past, so that might speak to them being able to get to it a little bit more quickly," Clark said.
"But in any event, if they are able to get it in, say, less than two months, something like that, that would be the triumph of hope over experience, because the history of it is it takes a little bit longer."
https://www.eenews.net/eenewspm/2017/05/16/stories/1060054637
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(ACC Mentioned) Pace of EPA New Chemical Reviews Picks Up, Allaying Concerns
May 17, 2017 | BNA Daily Environment Report
By Pat Rizzuto
Chemical industry concerns that new compounds aren't being approved in a timely way are being allayed by newly posted EPA decisions.
The backlog hasn't been eliminated, but the information the agency posted “is an important indicator of progress on the backlog,” Michael Walls, vice president for regulatory and technical affairs at the American Chemistry Council (ACC), told Bloomberg BNA May 16.
“I think what it reflects is a commitment by EPA to address the backlog that we've seen in the Section 5 program, and that is welcome news,” Walls said. Section 5 refers to the part of the Toxic Substances Control Act that provides EPA the authority to review new chemicals before they can be made in or imported into the U.S.
The EPA has added staff to address the backlog of premanufacture notices (PMNs), Karyn Schmidt, senior director for chemical regulation, regulatory and technical affairs at the chemistry council, told Bloomberg BNA. “That should be sustained,” she said.
The EPA did not respond to Bloomberg BNA's request for comment on its new chemical activities.
Backlog
Chemical manufacturers and their representatives have been criticizing the agency's new chemicals program since TSCA was amended in June 2016.
A logjam of more than 800 new chemicals appeared to have built up at the agency since June based on information the agency had published in the Federal Register and posted online as of May 11. That compared to the agency's record of completing about 1,000 new chemical reviews annually prior to the 2016 TSCA amendments. The EPA's protracted new chemical reviews impede innovation, companies, trade associations, attorneys and former agency staff have said. The ACC represents multiple chemical companies including Celanese, BASF, Daikin America, Inc., PP&G Industries, Procter & Gamble, and DuPont.
The new information, which the agency posted since May 12, shows the EPA has made many more new chemical decisions since TSCA was amended than was publicly known, Richard Engler, a senior chemist with the Bergeson & Campbell, P.C. in Washington told Bloomberg BNA May 16.
Richard Denison, lead senior scientist with the Environmental Defense Fund, described the agency's new information as “a good step toward greater transparency.”
Much of the information the agency is posting about its new chemical reviews has never been available to the public before, Denison told Bloomberg BNA.
Dan Newton, a senior government relations manager with the Society of Chemical Manufacturers & Affiliates (SOCMA), agreed that the EPA's newly posted information shows progress, but more is needed.
The agency has received at least 100 PMNs since last October, which aren't listed on either of two newly updated websites, he said. “There's still a lack of transparency,” Newton told Bloomberg BNA.
Walls said the newly posted information and the chemistry council's interactions with the agency suggest that about 500 new chemicals remain under review.
First Updated Website
The first website, which had a search function that previously allowed users to learn the interim status of the agency's PMN reviews, now also provides the agency's final determinations or “dispositions.” Using that search tool, parties can see new details about the reviews, including:
• chemical manufacturers have voluntarily withdrawn their PMNs for more than 60 chemicals;
• the agency has determined that more than 160 new chemicals might pose an unreasonable risk, but that the potential risks could be managed; and
• that EPA decided that 40 new chemicals could enter commerce because the new substance was “not likely to present an unreasonable risk,” which is the safest finding the agency can make under the amended law.
Engler said details he plans to examine include how the agency's interim decisions compare to the final ones it reached.As a chemist, he also plans to use this website and other information to discern patterns in the agency's decisions. For example, the agency may be finding that certain classes of chemicals raise concerns, Engler said.
Second Website
The second website the EPA updated used to say it listed “determinations under amended TSCA” but actually listed only chemicals that the agency deemed “not likely to present an unreasonable risk.”
That website has been revised to make it clear it posts only information about the “not likely” category.
The updated website also now states “PMN submitters may commence manufacture upon notification by EPA.”
Schmidt with the chemistry council told Bloomberg BNA the new language is extremely helpful because it shows the statute allows these chemicals to enter commerce before what used to be a required 90-day moratorium.
Under the amended law, companies that submit a chemical which the EPA concludes is “not likely to present an unreasonable risk” can begin to make or import the chemical as soon as they are notified by the agency.
Clarification Needed
Walls said the newly posted information needs some clarification as to whether the final disposition means the agency has completed its negotiations with the company that submitted a PMN.
When the agency concludes a new chemical may pose an unreasonable risk, but that the potential risk can be managed, it negotiates risk management strategies with the company that submitted the new chemical notification.
The agency may have reached the conclusion that more than 160 new chemicals might present an unreasonable risk that could be managed, Walls said, but the website doesn't state whether the company and agency have negotiated a consent order spelling out how that potential risk would be managed.
The shorter the time between the agency's conclusion and the completion of the consent order, the quicker the new chemical can proceed to market, Schmidt said.
Denison said those consent orders—minus confidential business information that may be in them—must be made public.
Section 26(j)(1) of the Lautenberg Chemical Safety Act, which amended TSCA, requires the EPA to make publicly available “all notices, determinations, findings, rules, consent agreements, and orders of the administrator,” Denison said, citing the statute.
Refunds
Under the amended law, if the EPA fails to complete its review of a new chemical within the statutorily mandated 90 days, the agency must refund the fee companies pay to submit their premanufacture notices.
The EPA has yet to propose a TSCA-mandated rule that would establish the new fees authorized by the amended statute.
It will help companies if the agency's proposed fee rule makes clear when refunds are owed, Schmidt said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111797032&vname=dennotallissues&fn=111797032&jd=111797032
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Green Chemistry in 2017: The State of States
May 16, 2017 | The National Law Review
By Sheila A. Millar, Nathan A. Cardon, & Anushka N. Rahman
Since our last report covering state-level green chemistry initiatives, more states added green chemistry regimes, and some states that already had green chemistry legislation in place issued updates. In many cases, these changes will impose additional burdens on consumer product makers. [1]
State laws vary, which makes the landscape confusing. Some state laws apply only to children’s products, and others potentially affect all consumer products. Typical green chemistry laws cover a variety of specific chemicals and require covered companies to report to the state the identity of listed chemicals present in covered products. Reports must include not just listed chemicals that are intentionally added at any level, but also those inadvertently present as a contaminant above a threshold, generally set at 100 parts per million (ppm). Other state green chemistry laws require submission of an “alternatives assessment” (AA) in addition to reporting. Still, others give states authority to compel companies to completely eliminate chemicals in their products after a certain period.[2]
The growth of state green chemistry laws and state chemical bans has been attributed, at least in part, to a national chemical approval regime that many felt was outmoded. Last year’s enactment (after years of negotiation) of a law reforming the nation’s primary chemical safety regulation, the Toxic Substances Control Act (TSCA), may eventually slow or halt the expansion of new requirements. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. 114–176) (commonly referred to as the Lautenberg Chemical Safety Act or LCSA), passed on June 22, 2016, clarified EPA’s authority under TSCA. LCSA provides the U.S. Environmental Protection Agency (EPA) with a consistent source of funding to carry out evaluations of health risks posed by specific chemicals. The new law also establishes a preemption scheme which, while not as broad in scope as preemption provisions in some other laws, gives EPA the ability to preempt certain state laws. This may not, however, include state chemical reporting regimes in place at the time of enactment, although the fate of further updates or changes to those laws will likely be the topic of future litigation. At present, firms must continue to absorb the cost and effort to report the presence of a contaminant or de minimis levels of chemicals in products under applicable state green chemistry laws, at least until EPA determines that certain chemicals or levels are safe. State regulations of chemicals will, therefore, continue to be important to a broad set of industries and companies going forward.
Below, we discuss current and potential state green chemistry regimes that have developed since our last article on this topic, discuss some chemical-specific laws, and assess what might be on the horizon now that TSCA reform has been enacted. There are many nuances in these laws, with certain exceptions and exemptions not as extensive as they initially seem. Adding to this complexity is the fact that guidance documents do not always align with the statutory language. We provide a high-level summary of the laws mentioned below, so it is still important to carefully review the detailed requirements of these laws if you are subject to them.Green Chemistry Regimes: What’s New
“Green chemistry” laws are generally those that attempt to address the use of numerous chemicals in products – sometimes limited to children’s products –typically by establishing a list of chemicals of concern or high concern and requiring reporting. This approach adopts a “right to know” principle. In practice, this may encourage manufacturers to eliminate chemicals to avoid the burdens and (potentially) negative reputation hit associated with reporting. State green chemistry regimes vary in many crucial respects, although many include common elements – most importantly, reporting.
For example, California’s green chemistry law could reach all consumer products and includes a mandatory alternatives assessment. However, the obligations apply only to specific listed chemicals in specifically listed products, so the impact has been much more limited than was anticipated when the law was adopted. Washington enacted a green chemistry law that applies only to children’s products, but all children’s products are subject to reporting if any listed chemical is present. Unlike California, the Washington law encourages but does not require, an alternatives assessment. Maine’s green chemistry law is something of a hybrid of California and Washington. It applies to children’s products and requires an alternatives assessment for a subset of chemicals once the state’s administering agency imposes such a requirement. The green chemistry law in Oregon also covers children’s products and requires an alternatives assessment, but goes further. It purports to require the removal of listed chemicals in certain products by submission of a third biennial report. Vermont is considering legislation that would expand reporting obligations to all consumer products, and to require removal of listed chemicals in children’s products after the third biennial report.
This short overview simply identifies some key differences among the major state green chemistry laws. We address each of the existing state green chemistry regimes in alphabetical order below, including proposed updates to those regimes as of the date of this summary. Current legislation to impose new green chemistry regimes follows this list.Current Green Chemistry Regimes
California. In 2008, California passed the Green Chemistry Law,[3] the first state law of its kind designed to regulate chemicals in all consumer products.The law requires the state’s Department of Toxic Substances Control (DTSC) to adopt regulations for identifying and prioritizing chemicals of concern found in consumer products. Despite being the first state to enact green chemistry legislation, California has taken a deliberative approach to implementing regulations, so the law affects a very small number of products at present.
The Safer Consumer Products Regulations (SCP), adopted October 1, 2013, created a four-step process for evaluating chemicals of concern and identifying safer consumer product alternatives.[4] After identifying candidate chemicals (step one), DTSC identifies priority products containing the chemicals (step two). Then, manufacturers must perform an AA, comparing the priority product with potential alternatives (step three). (A draft guide on AAs was released in 2016.[5]) Finally, DTSC may issue a regulatory response, such as a prohibition or use restriction (step four), which does not apply if manufacturers file conforming removal/replacement notifications.
In April 2015, DTSC released it's 2015–2017 Priority Products Work Plan, identifying a broad set of considerations for identifying categories for priority products and chemicals of concern.[6] Only limited categories of products have been identified so far: paint and varnish strippers and surface cleaners containing methylene chloride; spray polyurethane foam systems containing unreacted diisocyantes; and children’s foam padded sleeping products containing tris(1,3-dichloro-2-propyl)phosphate (TDCPP).[7] Although these initial products are not on a final priority products list, DTSC is already considering additions, including uses of nonylphenol ethoxylates and triclosan in a variety of goods;[8] chemicals in nail products;[9] and perfluoroalkyl and polyfluoroalkyl substances (PFASs) in carpets, rugs, indoor upholstered furniture and their related care and treatment products.[10]
Connecticut. Green chemistry legislation was adopted in Connecticut in 2008. The principal objective of Connecticut’s State Child Protection Act was to set limits on the levels of lead in children’s products, arguably taking it outside the ambit of a true green chemistry law. However, the law also requires the state to identify a list of toxic substances and recommend maximum permitted levels of such substances as well as safer alternatives.[11] Participation in an interstate chemicals clearinghouse is allowed.[12]
Lead restrictions in both paint and surface coatings and substrate in children’s products were preempted by the Consumer Product Safety Improvement Act of 2008 (CPSIA), but the state has used other laws, outside of its green chemistry regime, to regulate chemicals. Among these have been restrictions on bisphenol A (BPA), restricting the use of the chemical in reusable food and beverage containers, infant formula containers, baby food containers,[13] and (later) in thermal receipt paper.[14] Another law prohibited the manufacture, sale, or distribution of children’s jewelry containing cadmium at more than 0.0075% by weight.[15]
Maine. Maine instituted its green chemistry regime in 2008 to reduce the use of chemicals of high concern in children’s products.[16] The state’s Department of Environmental Protection (MDEP) administers the law as the Safer Chemicals in Children’s Products Program (SCCP). MDEP uses reporting and a three-tiered system of chemical categorization to encourage the use of safer chemical alternatives and to increase awareness of potential childhood chemical exposures. Participating in an interstate chemicals clearinghouse is permissible.
The first tier of the SCCP’s three-tiered system creates a list of “chemicals of concern,” which are identified as carcinogens, reproductive toxins, or endocrine disruptors,[17] and includes approximately 1,400 chemicals.[18] The second tier uses the chemicals of concern list to identify a much smaller subset of “chemicals of high concern,” and currently consists of 36 chemicals.[19] The final tier identifies “priority chemicals” from the list of chemicals of high concern, and inclusion here triggers greater requirements for industry participants, including reporting[20] and potentially a required AA (if specifically directed by the state).[21] The AA requirement is notable as AAs are optional in most other states. The current list of priority chemicals includes BPA,[22] nonylphenol, nonylphenol ethoxylates,[23] cadmium, mercury, arsenic,[24] formaldehyde, di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), and diethyl phthalate (DEP).[25]
Michigan. .The Michigan Green Chemistry Program was created in 2006 by Executive Directive No. 2006-6. Although the program encourages the elimination of toxic chemicals from consumer products, there is no enforcement mechanism.
Minnesota. The Toxic Free Kids Act of 2009 requires the Minnesota Department of Health (MDH) to create two lists of chemicals, one of “chemicals of high concern” and another of “priority chemicals.”[26] The high concern list identifies chemicals that may harm human health or the environment. Over 1,700 chemicals were included in the first list, and chemicals have been added and removed in subsequent updates in 2013 and 2016. Although the law provides for the identification of and communication about the potential for “hazardous chemical exposures which could be harmful to human health,” and potentially selects chemicals for the “development of health[-]based guidance,”[27] the law does not impose a reporting requirement MDH may nonetheless participate in the Interstate Chemicals Clearinghouse (IC2). Earlier this year, the state legislature began considering a bill to require reporting, updated biennially, with universal product codes (UPCs) being required in the second submission if the listed chemical is not removed from the product.[28] The bill would impose a $1,000 fee per chemical initially reported.[29]
Oregon. In 2015, Oregon passed its own Toxic Free Kids Act to establish and maintain a list of chemicals of high concern in children’s products.[30] The law requires manufacturers to report products to the state that contain chemicals identified as chemicals of high concern at greater than de minimis levels. The first reporting deadline is January 1, 2018, and then every other year after that.
Crucially, chemicals will need to be removed from certain products by six years after reporting begins, including listed chemicals in children’s products that are children’s cosmetics, mouthable, or made for or marketed to children under three. Manufacturers can seek waivers through the submission of an AA and quantitative exposure assessment that demonstrates the presence of the chemical in the children’s product is not reasonably anticipated to result in exposure, and removal of the chemical is not financially or technically feasible. Additionally, listed chemicals that are regulated by CPSIA, and present at or below CPSIA-set levels, need not be removed.[31]
The Oregon Health Authority (OHA) is writing rules in three phases that will govern reporting and other requirements. In the first phase (already completed), OHA listed chemicals of high concern (the same as Washington state’s 66). OHA has also completed the second phase by publishing a final rule setting out manufacturer reporting requirements and non-compliance penalties. In 2019, OHA plans to complete the third phase by issuing final rules on removing CHCCs from children’s products covered under the state law. The first possible deadline for removing CHCCs or applying for a waiver is January 1, 2022. The state’s legislature is also considering a bill that would redefine the “de minimis level” to “a concentration of 100 parts per million,” which would be effective January 1, 2018.[32] Given the projected timeline of program requirements, it is possible that some Oregon requirements will be preempted by the implementation of TSCA reform initiatives.
Vermont. When initially conceived, the Vermont law was modeled after Washington’s.[33] In its current form, Vermont’s legislation remains like Washington’s green chemistry regime in most regards but is much more onerous. Like Vermont, the state adopted a list of 66 CHCCs. Under the state’s Chemical Disclosure Program (CDP), manufacturers and importers of children’s products sold in the state are required to file a notice to the state’s Department of Health (VDH) if their products contain a CHCC.[34] Unlike Washington and other states, however, reports must identify chemicals in products by brand name and product model, at the level of stock-keeping units (SKUs)[35] (SKU reporting is not required for trade secrets[36]).
Each manufacturer must pay a fee of $200 per notice; notices are based on individual chemicals (with each product containing the chemical listed). Thus, based on a list of 66 chemicals, the maximum fee owed by a single company is $13,200. If a chemical is a trade secret, the manufacturer must still report the chemical’s function, generic class or category, and concentration.[37] Manufacturers are exempt from reporting where a manufacturing control program (MCP) (a chemical control program that includes industry best practices to limit chemicals in children’s products) is in place.[38] Failure to report or comply with any other provision of the rule can subject a company to civil enforcement by the state’s attorney general.[39]
Initial reports were due January 1, 2017,[40]and the next set of full reports are due by August 31, 2018, with further disclosures from manufacturers due biennially. While the Vermont law does not currently ban products containing CHCCs, a working group under the rule will review disclosure data and recommend next steps.[41]
A new bill under discussion in the legislature would amend requirements under the State Toxics Use Reduction and Hazardous Waste Program.[42] As introduced, the bill would have significantly expanded Vermont’s CDP by extending reporting requirements to all consumer products – not just children’s products.[43] Further, following Oregon’s example, the original bill would have required removal, by the third required biennial report, of listed chemicals from children’s products that are mouthable; children’s cosmetics; or made for, marketed for use by or marketed to children under three.[44] However, the bill as passed by the Senate, is less burdensome, as it establishes an Interagency Committee on Chemical Management to evaluate chemicals in the state’s inventory.[45] The amended bill is now under review by the House.
Washington. The state’s Children’s Safe Products Act (CSPA)[46] required the state Department of Ecology (Ecology) to develop rules[47] to administer a green chemistry reporting program. While applicable only to children’s products, the Washington program has served as a model for other states. The legislation requires affected manufacturers to report the presence of listed chemicals in children’s products, with “children” defined as those under 12. While AAs are permitted, they are not mandatory, and the CSPA does not require manufacturers to eliminate chemicals or make product changes. (Ecology released a guide on AAs in 2015.[48]) Ecology developed a list of chemicals of high concern to children (CHCC) subject to reporting requirements.[49]The presence of a CHCC in a covered children’s product must be reported to the state unless it is exempt.
Under the CSPA Reporting Rule, companies are required to notify the state about the presence of CHCCs found in their children’s products in two circumstances:(1) if the chemicals are intentionally added and are present above the practical quantification threshold (PQL), or (2) if the chemicals are present as contaminants at any concentration above 100 ppm.[50] Additionally, Ecology defined inaccessible product components (those that during reasonably foreseeable use and abuse would not come into direct contact with the child’s skin or mouth) as exempt from reporting requirements absent case-by-case evaluation and specific requirement by rule.[51] A manufacturer need not file a notice for any CHCC that occurs only as a contaminant as long as the manufacturer has in place an MCP and has exercised due diligence to minimize the presence of the contaminant.[52] (The state’s interpretation of a qualifying MCP, however, appears to be quite narrow.) Ecology also conducts tests on individual items and may initiate proceedings against companies that, in the state’s view, fail to report.
Ecology continues to revise its list of chemicals,[53] including in response to legislation,[54] and is planning relatively minor modifications to its rule, like to be adopted in fall 2017.[55] The Washington legislature is considering additional amendments in the form of a bill to require manufacturers of children’s electronics (which are currently excluded from the definition of children’s products) to report the presence of CHCCs, which would take effect in 2018.[56]The State Legislative Agenda
Several additional states are considering bills to adopt green chemistry frameworks.
Alaska. The Alaska House is considering a bill that appears aimed at eventually establishing a green chemistry program that would list chemicals of high concern, permit participating in IC2, but not require reporting.[57] The bill would also prohibit the sale of consumer products containing the flame retardants TDCPP, TCEP, and TCPP.
New York. The New York Senate is considering two bills aimed at establishing different versions of green chemistry programs, including sales prohibitions. Under one, introduced in the prior legislative session, manufacturers would have to report on the presence of priority chemicals, including those designated on a predetermined list or added to the priority list from a longer list of chemicals of high concern. Sale of most children’s products containing any of the original list of priority chemicals would not be permitted starting in 2020, and selling children’s products containing newly designated priority chemicals would be impermissible three years after designation. The sales prohibitions are not tied to any specific content or contaminant level.[58] A second bill, introduced in four prior sessions, would establish a similar reporting regime and sales prohibition, but start the prohibition in 2022.[59]
Massachusetts. The Massachusetts legislature is considering a bill that would direct the creation of a list of “toxic chemicals,” including nano-objects, used above de minimis levels in children’s products or formulated chemicals. Reporting would be required annually.[60] A separate bill would identify priority chemicals, require reports to be filed by manufacturers and distributors, and require a state council determine whether feasible alternatives exist for those chemicals. For chemicals that the council identifies feasible alternatives for, a chemical action plan (including a timeline for substitution) would be required.[61] A similar bill was filed in the prior legislative session.Looking Forward: What to Expect in 2017
The most significant development in toxic chemicals regulation is the much- anticipated adoption of comprehensive legislation to overhaul TSCA. TSCA provides the EPA with the authority to review, evaluate, test, and regulate the use of chemicals on the federal level. The original law, enacted in 1976, was viewed as outmoded, and states began to regulate chemicals in lieu of the EPA.
LCSA was passed to replace the current patchwork of state laws with a single national standard. The new safety standards include conditions of use and susceptible populations.[62] EPA can now regulate the use of chemical substances in consumer products, and ingredients will need to be reported.[63] LCSA also includes preemption provisions that could make it more difficult for states to regulate chemicals that are under review by EPA.
Existing regulations that do not conflict with federal law would stay intact, but future restrictions will likely be affected since LCSA creates a preemption pause to prevent states from evaluating chemicals at the same time as EPA.[64] Two forms of preemption restrict state actions: pause preemption and final action preemption. Pause preemption begins after EPA initiates review of a high-priority chemical. Once EPA identifies a chemical for prioritization, it must wait at least one year before publishing a scope of risk evaluation. States restrictions are preempted once the scope is published, unless a waiver is obtained, but the pause preemption ends once the final risk evaluation is published or EPA misses its deadline for publishing it.
Final actions by EPA – both in finding that a chemical “does not present an unreasonable risk” or in finding risk and imposing restrictions – preempt past state actions (unless grandfathered) and future state actions. EPA’s findings and restrictions (if applicable) preempt only state actions within the scope of EPA’s action, however, and EPA preemption does not apply to information-forcing requirements like monitoring, reporting, or disclosure. This may leave aspects of state green chemistry regimes intact, although restrictions may be subject to challenge. Indeed, the LCSA preemption provisions are likely to lead to litigation as states and the federal government try to sort out the legal landscape. In addition, state substantive restrictions in conflict with EPA or other agency safety determinations could give rise to challenges under the U.S. Constitution’s Commerce Clause.
Although the pace of state green chemistry lawmaking has slowed since the 2008–2010 time period (when many of the green chemistry regimes were adopted), states continue to pursue or expand regimes with the intent of restricting “chemicals” in consumer products. Unfortunately, state chemical control regimes are likely to increase cost and foster confusion about chemical safety, which is one reason that Congress agreed to modernize TSCA by adopting LCSA. EPA has much work to do to establish policies, designate high- and low-priority chemicals, and adopt substantive limits, and the hope is that LCSA will foster transparency with a focus on science. Ultimately, courts will likely be called upon to resolve the extent to which state actions conflict with EPA actions, or with other requirements, such as chemical limits under the CPSIA.
It remains important for consumer product companies and their chemical suppliers to keep up to date on new developments affecting chemicals across federal and state governments, and market agendas. There will be no shortage of challenges for the foreseeable future.
http://www.natlawreview.com/article/green-chemistry-2017-state-states
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(ACC Mentioned) Research Says Plastics-to-Fuel Technology Reduced Greenhouse Gases
May 16, 2017 | Plastics News
By Jim Johnson
Using pyrolysis to convert unrecycled plastics into ultra-low-sulfur diesel fuel stacks up favorably to similar fuel made from crude oil, new research shows.
The U.S. Department of Energy's Argonne National Laboratory compared the creation of ultra-low-sulfur diesel fuel created from the plastics-to-fuel process to traditional crude oil.
Research shows reductions of up to 14 percent in greenhouse gas emissions, 58 percent in water consumption and 96 percent in energy consumption using pyrolysis, according to a peer-reviewed article, "Life-Cycle Analysis of Fuels from Post-use Non-recycled Plastics," in a journal called Fuel.
"Argonne's analysis clearly determines that plastics-to-fuel (PTF) technology is a viable and beneficial materials management option," said Craig Cookson, director of recycling and energy recovery for the American Chemistry Council, in a statement. "Not only does PTF reduce waste going to landfills, but these technologies can help reduce GHG emissions while conserving both water and energy."
Argonne, located in Illinois, is part of the U.S. Department of Energy. Pyrolysis uses a process to heat and decompose material, in the absence of oxygen, to create fuel.
http://www.plasticsnews.com/article/20170516/NEWS/170519926/research-says-plastics-to-fuel-technology-reduces-greenhouse-gases
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BRT Seeks to Streamline Agencies' Chemical Programs
May 17, 2017 | Inside EPA
The Business Roundtable (BRT), the group that represents Fortune 500 CEOs, is urging the Trump administration to take steps to streamline EPA and the Occupational Safety and Health Administration's (OSHA) programs governing industrial chemicals as it considers how to reorganize the executive branch and eliminate “unnecessary agencies.”
In an attachment to May 15 comments to the Office of Management & Budget (OMB), Mark Costa, CEO of the Eastman Chemical Company and chairman of BRT's Smart Regulation Committee, also urged officials to limit overlap between EPA and the Food & Drug Administration (FDA) overseeing some laboratory inspections, and similarly recommended limiting overlap between FDA, EPA, the Agriculture Department (USDA) and other agencies that oversee food safety.
BRT's comments come in response to President Donald Trump's March 13 executive order, EO 13781, requiring EPA and other agencies to develop plans to reorganize the executive branch and “end” unnecessary agencies and programs.
The order requires each agency to submit their reorganization plans to OMB within 180 days. OMB would then review the plans to craft a proposal to submit to Trump on how to overhaul the executive branch.
EPA and other agencies are also conducting anonymous staff surveys on issues such as whether states should take over some of their work.
OMB is also requesting ideas from the public to reorganize the executive branch ahead of a June 12 deadline.
In BRT's comments, Costa bemoans the fact that “businesses commonly find themselves subject to two or more regulatory agencies exercising concurrent jurisdiction over a single issue."
In the attachment, he lists three issues that feature EPA, starting with its overlap with OSHA. EPA and OSHA “have overlapping authority in the area of chemical process safety and in regulating individual chemicals based on workplace hazards. The Department of Homeland Security (DHS) is also involved in some instances, as are state and local government agencies.”
The list references a 2014 report from the Government Accountability Office (GAO) that found that those three agencies “are involved in regulating facilities with hazardous chemicals. GAO recommended increased coordination among these organizations to increase awareness of chemical hazards and improve regulatory compliance.”
Costa also points to “overlap” between EPA and FDA in conducting certain types of laboratory inspections. He describes this as “Particularly relevant for labs testing toxicology, pesticides, investigational drugs, medical devices, food additives, and other products."
And Costa argues that too many agencies are involved in regulating food safety, including EPA. “No less than 15 federal agencies are involved in overseeing the U.S. food safety system, most notably [FDA], [USDA] and EPA.”
He argues that the problems with areas of regulatory duplication are not just compliance costs, but also the increased “likelihood of inconsistency between agencies in how certain products or transactions are viewed, adding complexity and in some instances, conflict, that can undermine the regulatory objectives each agency is trying to achieve.”
Costa says the “ideal way to produce a more rational regulatory framework in any area is for Congress to pass legislation that streamlines and simplifies the regulatory process and eliminates redundancy. . . . But we also believe there is much the President can accomplish without waiting for Congress to act.”
Costa describes four ways in which Mulvaney could address the issue: through memoranda of understanding between agencies regarding overlapping jurisdiction; lead agency designation for issues with duplication; new rules “touching the jurisdiction of multiple agencies” should be conducted jointly by those agencies and interagency coordination for enforcement of old rules. “OMB should consider mechanisms for fostering greater coordination among agencies with regard to enforcement actions and penalty determinations.”
https://insideepa.com/daily-feed/brt-seeks-streamline-agencies-chemical-programs
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ECJ Sides with Echa on EDC Classification of DEHP
May 17, 2017 | Chemical Watch
By Clelia Oziel
The European Court of Justice (ECJ) has dismissed legal action challenging Echa's 2014 decision to identify the phthalate DEHP as an endocrine disruptor for the environment.
Czech manufacturer Deza disputed the classification because the substance was already designated an SVHC and added to the REACH candidate list in 2008, due to its reprotoxic potential.
In its ruling on 11 May, the ECJ said Echa did not err in its conclusion that DEHP is an endocrine disruptor for the environment. Furthermore, the agency did not commit procedural breaches and its decision did not contravene the principles of legitimate expectations and legal certainty, the court said.
It ordered Deza to bear all costs incurred by Echa. Four European countries that supported the agency – Denmark, the Netherlands, Norway and Sweden – will pay their own costs. Denmark initially called for the substance to be classified as an endocrine disruptor for the environment.
In 2015, Deza submitted two appeals against Echa’s decision. The first was to annul the new classification, which was rejected on 11 May this year. The second was an appeal to suspend the classification, until the court gave its final ruling on the first appeal. The court rejected the latter in 2015.
In February this year, a majority of member states backed another Danish proposal to add DEHP and three other phthalates – BBP, DBP and DiBP – to the candidate list due to their endocrine disrupting effect in humans.
It was the first time REACH officially recognised chemicals as being of very high concern because of their endocrine disrupting properties to humans, NGO Health and Environment Alliance (HEAL) said.
DEHP is widely used as a plasticiser in the manufacturing of articles made of PVC.
https://chemicalwatch.com/55896/ecj-sides-with-echa-on-edc-classification-of-dehp
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May 16, 2017 | American Chemistry Matters
By Steve Russell
A new study by Argonne National Laboratory (ANL), part of the U.S. Department of Energy, found that converting non-recycled plastics into diesel fuel can reduce greenhouse gas emissions by up to 14 percent, water consumption by up to 58 percent, and traditional energy use by up to 96 percent compared to diesel production from traditional crude oil.
You read that right: 96 percent.
ANL used the Greenhouse gases, Regulated Emissions and Energy use in Transportation (GREET®) model to conduct its analysis. The GREET model is a highly respected model used by sustainability professionals, federal and state government agencies, and energy companies for making decisions about material use and fuels.
The results from this study add to the growing amount of evidence that shows our lost opportunities when we bury non-recycled plastics in landfills. Not only do we lose the opportunity to put non-recycled plastics to good use, we lose the opportunity to conserve valuable resources and shrink our environmental footprint.
It has been said before, but it’s worth repeating: it’s time to start thinking of non-recycled plastics as a valuable resource.
https://blog.americanchemistry.com/2017/05/plastics-to-fuel-turns-waste-plastics-into-a-valuable-resource-while-saving-other-resources-in-the-process/
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Will Pruitt Harpoon Climate Doubters' 'Great White Whale'?
May 17, 2017 | BNA Daily Environment Report
By David Shultz & Andrew Childers
EPA Administrator Scott Pruitt has vowed to roll back Obama-era rules capping greenhouse gases from power plants and oil wells, but some conservative groups want him to go further and uproot the legal foundation for the agency's climate regulations.
It remains to be seen whether Pruitt has the appetite to attempt to overturn the Environmental Protection Agency's landmark 2009 determination that greenhouse gases should be regulated, known as the endangerment finding. Undoing that decision would require reversing course on decades of EPA research on greenhouse gases, but success would mean a complete halt to all of the EPA's work on climate change. However, that might be insurmountable given a court decision upholding the finding—a case that Pruitt lost, attorneys said.
Jonathan Adler, a law professor at Case Western Reserve University in Cleveland, is a conservative blogger who has been critical of the way the Obama administration regulated greenhouse gases. But, he said, given a federal appellate court's unanimous ruling the finding is legal, attempting to repeal it would be a fool's errand.
“I think, even accepting the goals of the people who want to get rid of the endangerment finding, I compare it to chasing the white whale or tilting at windmills,” Adler told Bloomberg BNA.. “The likelihood of prevailing is so small.”
Friendly Administrator
The agency did not respond to requests for comment for this story.
With a friendly administrator at the EPA—Pruitt, himself, has questioned the effect emissions from human activities have on climate—opponents of greenhouse gas regulations see an opportunity to halt all climate change work in its tracks.
“The endangerment finding is the springboard for all of the Obama EPA climate policies,” Ted Hadzi-Antich, a senior attorney at the Texas Public Policy Foundation, told Bloomberg BNA. “The endangerment finding supports the car emissions rule, the truck emissions rule, the power plants, all of the EPA's regulations, many of which are still in the pipeline. Without the endangerment finding, none of them would be able to stand.”
Receptive Ear
Hadzi-Antich's group is one of the three that have filed formal petitions on the endangerment finding to the EPA, arguing the determination should have been reviewed by an advisory board of scientists first. The Competitive Enterprise Institute, which helped staff President Donald Trump's transition team at the EPA, and Concerned Household Electricity Consumers Council have also sought to overturn the finding, attacking the fundamental science of climate change.
Their petitions may be greeted with a receptive ear at the EPA.
As Oklahoma attorney general, Pruitt joined a lawsuit seeking to overturn the endangerment finding. That suit ultimately failed at the U.S. Court of Appeals for the District of Columbia Circuit in a unanimous 2012 decision and the U.S. Supreme Court declined to review the endangerment finding..
Given those decisions, Adler said going after the finding would divert EPA resources from less ambitious attempts to roll back individual climate regulations.
“In the real world, it's a fairly destructive quest,” he said. “You can't do it all.”
No More ‘Magic Wand’
Rather than a frontal assault on the endangerment finding, Pruitt would be better served reading that decision more narrowly, said Eric Groten, a partner in Vinson & Elkins LLP's Austin, Texas office who had represented industry groups in challenges to the initial 2009 finding.
He said the finding only addressed greenhouse gas emissions from vehicles, while the Obama EPA had interpreted this as triggering regulation for other emissions sources such as power plants. Pruitt could simply reverse course and decide that the endangerment finding doesn't apply to sources of greenhouse gas emissions other than vehicles, Groten told Bloomberg BNA.
“Stop using that 2009 finding as a magic wand to justify further regulation,” he said.
Limited Bandwidth
However, the reality is that Pruitt has promised an aggressive deregulatory agenda at the same time that the White House has proposed more than 30 percent cuts to the EPA's budget.
Ethan Shenkman, a partner in Arnold & Porter Kaye Scholer LLP who served as deputy general counsel at the EPA during the Obama administration, said this finite amount of resources and man-hours will factor into Pruitt's decision making—especially considering that any potential repeal of the endangerment finding would be challenged in court and spend years being litigated.
“If the budget is cut significantly, and if the agenda remains as ambitious as it has been, there's a question whether the agency will have resources to tackle all these issues in a way that will stand the test of time,” Shenkman said. “They can try to take shortcuts and cut corners, but the problem is there will likely be some state and environmental groups and others who will challenge what they do and the courts will take a very hard look.”
Having been on the losing side of the last attempt to overturn the endangerment finding, Pruitt may be less inclined to take a second whack at the decision and instead spend his efforts halting greenhouse gas regulations that specifically target power plants or oil wells, Adler said.
“Pruitt is an experienced litigator,” he said. “He understands that context. I would expect he's well aware that the endangerment finding is not worth trying to take down. In litigation sometimes you go for the silver bullet and sometimes you go for the things you can achieve.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111797019&vname=dennotallissues&fn=111797019&jd=111797019
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White House Says Offshore Energy Order Poses Minimal Cost to Federal Government
May 16, 2017 | Natural Gas Intelligence
By Charlie Passut May
The White House's Office of Management and Budget (OMB) said an executive order (EO) signed by President Trump last month in support of offshore energy development, including oil and gas, will have a negligible cost impact to the federal government.
In a statement Monday, OMB Director Mick Mulvaney said implementing the EO -- titled "Implementing an America-First Offshore Energy Strategy" -- would "have a de minimis impact on costs and revenues to the federal government," adding that the Department of Interior (DOI) and the Department of Commerce would be the only government agencies affected.
"The benefits of this EO include the potential for lower energy prices, leading to reinvigorated American manufacturing and job growth as well as improvements in military readiness," Mulvaney said. "Implementing this EO would have a de minimis impact on mandatory and discretionary obligations and outlays, as well as on revenues to the federal government, in the five-fiscal year period beginning in fiscal year 2017."
Trump signed the EO on April 28. It directs the DOI to consider allowing oil and gas leasing in several offshore areas, including the Atlantic and Arctic oceans, the Beaufort and Chukchi seas, Alaska's Cook Inlet and the Gulf of Mexico (GOM). It also calls for a review of the proposed Well Control Rule, which DOI's Bureau of Safety and Environmental Enforcement (BSEE) developed in response to the Macondo well blowout.
Specifically, the EO calls for annual lease sales in the Western GOM, Central GOM, Beaufort Sea, Chukchi Sea, Cook Inlet, Mid-Atlantic and South Atlantic planning areas. It also orders DOI to ensure that any changes do not affect ongoing lease sales currently scheduled as part of the BOEM's OCS Oil and Gas Leasing Program for 2017-2022, which was finalized last November during the Obama administration.
The EO calls for DOI to coordinate with the Commerce Department to create a streamlined permitting process for privately funded seismic data research and collection in the offshore areas. It also ordered Commerce to refrain from designating or expanding any national marine sanctuary in the offshore.
Last week, DOI and Commerceannounced a review of 27 national monument designations in order to comply with the EO. Five of the 27 are marine monuments in the offshore.
The EO also calls for DOI to review the Offshore Arctic Drilling Rule, which BSEE and DOI's Bureau of Ocean Energy Management revised last July, partially in response to Royal Dutch Shell plc's misfortunes in the Arctic. The rule could ultimately be suspended, revised or rescinded.
http://www.naturalgasintel.com/articles/110481-white-house-says-offshore-energy-order-poses-minimal-cost-to-federal-government
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Maritime Sanctuaries Must Be Protected from Offshore Oil Drilling
May 17, 2017 | The Hill - Congress Blog
By Rep. Jimmy Panetta (D-CA)
President Donald Trump wants to open up our national marine sanctuaries to offshore oil drilling. His desire to expand energy exploration efforts into these protected areas is contained in his Offshore Energy Executive Order. In doing so, he is attacking a legacy of laws, leaders, and local communities that have long fought to prevent any attempts to drill for oil in our treasured marine sanctuaries.
The national marine sanctuary program was set up by President Richard Nixon to protect particularly important and unique areas of America’s oceans. Currently, there are 13 national marine sanctuaries in the United States and no president has ever reduced or eliminated any of these remarkable areas. Marine sanctuaries are critical to the economy, beauty, and security of our country. They help restore sustainable fisheries, buffer the impacts of climate change, and protect against the dangerous risks of offshore oil drilling.
California has the most marine sanctuaries, but also a long history of oil exploration and oil spills. The first ocean oil drilling in the United States was located off the coast of Santa Barbara in 1896. Seventy years later, in that same area, California experienced its largest, and our nation’s third worst, oil spill. Since then, California sustained several more oil spills that caused environmental devastation and economic downturns in its tourism and fishing industries.
In the 1980s, the federal government pushed to open up the California coastline to further offshore oil drilling. However, environmentalists and the fishing and tourism industries, along with their government representatives, fought back. Local communities implemented zoning laws to limit onshore oil infrastructure. A bipartisan delegation of California Congress members then authored and passed a moratorium on the Interior Department budget that banned the agency from spending any money to pursue offshore lease sales. Concerned that the coastline remained vulnerable, our leaders then looked to the federal marine sanctuary program to protect the oceans from any oil exploitation and extraction.
Normally, the Department of Commerce is empowered to designate marine sanctuaries, after a coordinated and lengthy process with local communities. By the early 1990s, however, the executive branch in Washington, D.C. appeared to be unwilling and unmotivated to designate more marine sanctuaries. Fortunately, Republicans and Democrats in Congress took the initiative and passed legislation that not only reauthorized the National Marine Sanctuaries Act, but also designated the Hawaiian Humpback Whale, Stellwagen Bank, and Monterey Bay National Marine Sanctuaries.
I am fortunate to now represent and live along the Monterey Bay National Marine Sanctuary. The legislation behind that sanctuary was the result of a unified Central Coast effort supported by local businessmen, fishermen, environmentalists, farmers, scientists, and citizens working with their representative in Congress. Known as the “Serengeti of the Sea” for its diverse and rich underwater life, the Monterey Bay Sanctuary is larger than Yellowstone National Park and deeper than the Grand Canyon. People come from all over the world to enjoy our sanctuary. Tourists drive along the coast or take a chartered boat out on the bay to watch whales and dolphins breach ocean waves and otters frolic in kelp forests. Families flock to the Monterey Bay Aquarium and Sanctuary Visitor Center and fill restaurants to eat fresh seafood caught by local fishermen. College students and scientists conduct research at the numerous marine research institutions that dot the coast of the sanctuary. As we celebrate the 25th anniversary of the Monterey Bay National Marine Sanctuary, we must also acknowledge that everybody is able to enjoy the fruits of our sanctuary because our leaders and local community members had the foresight to come together and create laws that preserve our oceans.
Our marine sanctuaries are living legacies that belong to all of us. It will take a lot more than an executive order by President Trump to turn back the clock on the incredible work done to establish these treasures. For three of our nation’s sanctuaries, including Monterey Bay, it would take an act of Congress to open them up for oil exploration and exploitation. That will not happen on my watch. I am part of that legacy of people and laws that have been put in place to protect the beauty and resources of the Monterey Bay. Together, we will fight not only for our marine sanctuaries in California and across our nation, but also to preserve the many benefits that our oceans bestow upon our communities, country, and future generations.
Panetta represents California's 20th District and serves on the Natural Resources Committee.
http://thehill.com/blogs/congress-blog/energy-environment/333723-maritime-sanctuaries-must-be-protected-from-offshore
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Spurned Shale Play's Getting Love as US Gas Prices Rebound
May 17, 2017 | BNA Daily Environment Report
By Naureen S. Malik
Climate action advocates who are looking to individual states for some good news given the Trump administration's rollbacks of climate efforts scored a victory May 16 with the Virginia governor's move to set carbon pollution limits for the power sector.
The executive order signed by Virginia Gov. Terry McAuliffe (D) directs the state's Department of Environmental Quality to “abate, control, or limit carbon dioxide emissions” from coal-fired power plants and other electric power facilities. The limits aren't expected to be in place at least until 2018: McAuliffe wants them drafted by Dec. 31, after which they'd be forwarded to the State Air Pollution Control Board for formal proposal and public comment.
Executive Directive 11 specifies that the rules be drafted as “trading ready”—meaning they should open the door for Virginia to join a nine-state pact that uses a cap-and-trade approach to cut power sector emissions. That Regional Greenhouse Gas Initiative was launched in 2005 and relies on emissions trading—akin to the European Union's approach, as well as some U.S. states including California—in which emitters must purchase allowances or permits for each ton of greenhouse gas they emit.
Virginia would be the 10th state to join the RGGI roster, which includes Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont. New Jersey also was in the regional compact until 2011, when Gov. Chris Christie (R) withdrew from RGGI. But Christie is term-limited and will leave office in January 2018, opening the door to a successor to consider re-joining the effort.
States, Mayors More Vocal
Some states have become increasingly vocal on the need to take further climate action since Trump's election. Governors from six states—California, Connecticut, Minnesota, New York, Oregon, and Washington—in March vowed to push for continued state progress on curbing emissions in the wake of Trump's actions to rescind U.S. power plant carbon pollution limits. “As Washington, D.C. delays, the work to reduce greenhouse gas emissions in our cities and states continues,” they wrote in a March 28 statement.
“We will not waiver. And we will continue to enlist like-minded cities, states, regions and countries around the world to join this fight,” they wrote.
Other voices pressing for state and other local actions in the face of the Trump administration's retreat on climate policies include mayors from dozens of cities including Los Angeles, Seattle, Atlanta, New York, Boston, Chicago and Houston. They vowed March 28 to take “every action possible” to support the 2015 Paris climate pact—which Trump vowed during the campaign to “cancel”—and to “engage states, businesses and other sectors to join us” in taking climate action.
Virginia ‘Filling the Void’
McAuliffe skirted any mention of the northeastern state's regional compact in his statement announcing the action Virginia is taking. But he took aim at the Trump administration's move to rescind myriad Obama administration climate policies, including the power plant limits.
“As the federal government abdicates its role on this important issue, it is critical for states to fill the void,” the Virginia governor said.
A natural gas basin that helped kickstart the shale boom a decade ago is getting a new lease on life as the market recovers.
Production in the Haynesville reservoir will climb for the seventh straight month in June, reaching the highest since October 2014, government data show. Output in the play, located in Louisiana and east Texas, fell to a six-year low last March, pressured by tumbling gas prices and competition from gushier, more profitable wells in Pennsylvania and West Virginia.
As pipeline bottlenecks strand gas supplies in the eastern U.S., the vast network linking the Haynesville to the rest of the country—along with a new export terminal shipping American gas overseas—has made production in the play more valuable. Drillers from Exco Resources Inc. to Chesapeake Energy Corp. have refocused resources there to slash production costs, while private-equity backed companies bought assets to do the same.
“Once left for dead, the Haynesville Shale in Louisiana and East Texas is in the midst of a resurgence as new well designs bring natural gas gushers to life,” William Foiles, a New York-based analyst for Bloomberg Intelligence said in a May 12 report. “Redesigned wells have since expanded the Haynesville's untapped potential, with output expected to rise as capital and rigs return.”
Chesapeake has boosted well productivity by using “massive amounts” of sand to extract gas from deeply-buried shale, according to Foiles. Exco has drilled longer horizontal well sections and is fracturing the rock in more places.
The gas market's rebound has created strong economics to drill in the Haynesville, Hal Hickey, Exco's chief executive officer, said on a call May 10.
While Pennsylvania and West Virginia have “some really good reserves,” the need for more pipelines and processing plants is “really restricting us at this point relative to our opportunities down in the South,” Hickey said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111797001&vname=dennotallissues&fn=111797001&jd=111797001
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Conn. Sues EPA Over Pa. Power Plant
May 16, 2017 | E&E News
By Sean Reilly
Connecticut today ratcheted up its campaign for a crackdown on a Pennsylvania power plant, filing a lawsuit to prod U.S. EPA to act on a petition that ultimately seeks to cut the facility's output of nitrogen oxides.
The suit, filed in the U.S. District Court for Connecticut, asks a judge to compel EPA to hold a public hearing on the petition, filed last June against the Brunner Island Steam Electric Station in York, Pa., and then make a decision on whether the coal-fired power plant is hurting Connecticut's ability to comply with the 2008 ground-level ozone standard.
Especially during hot summer months, nitrogen oxides combine with volatile organic compounds to form ozone, a lung irritant that is the main ingredient in smog.
Almost a year after the petition was filed, "EPA's lack of action continues the exposure of our citizens to unhealthy air when it is clear that this plant significantly contributes to our pollution and needs to be controlled," said Rob Klee, commissioner of Connecticut's Department of Energy and Environmental Protection.
An EPA spokeswoman declined to comment on pending litigation.
Connecticut is currently in nonattainment for the 2008 ozone standard of 75 parts per billion and is unlikely to meet the more stringent 70 ppb threshold put in place in late 2015. Last September, Connecticut's congressional delegation had urged then-EPA Administrator Gina McCarthy to act on the state's petition (E&E Daily, Sept. 21, 2016).
The approximately 1,400-megawatt Brunner Island plant is owned by Talen Energy Corp. Applauding Connecticut's suit was the Sierra Club, where senior campaign representative Thomas Schuster said in a statement that it was time for EPA "to step up and protect the health" of residents of Connecticut, Pennsylvania and Delaware by requiring stricter controls on the Brunner Island plant.
https://www.eenews.net/eenewspm/2017/05/16/stories/1060054640
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Ohio Property Owners Sue to Stop 250- Mile Pipeline
May 17, 2017 | BNA Daily Environment Report
By Alex Ebert
More than 60 property owners are suing a gas company and the Federal Energy Regulatory Commission to halt construction of a 250-mile natural gas pipeline across Ohio and Michigan.
A group of 64 Ohioans called on the court to prohibit FERC from issuing Nexus Gas Transmission a certificate to construct the line and vacate the final environmental impact survey they claim does not take into account the damage that could befall their properties, the complaint filed May 12 said.
The lawsuit may further delay the project past its late 2017 targeted entry-into-service date. The Nexus pipeline, along with many other large electric and gas construction plans, has been in a holding pattern awaiting the appointment of another commissioner to FERC so that the commission will have the quorum it needs to issue construction certificates. (Urban, et al. v. Federal Energy Regulatory Commission, et al., N.D. Ohio, No. 5:17-cv-1005, 5/12/17.
“While we do not comment specifically on pending litigation, NEXUS has undergone a rigorous environmental review and has been publicly evaluated for more than two years to ensure that the project's proposed design and construction will be conducted in accordance with all applicable state and federal regulations,” Nexus spokesperson Adam Parker told Bloomberg BNA. “The record supporting Nexus’ certificate application is complete and ready for prompt FERC approval once a quorum is restored.”
But property owners claim the pipeline project cannot be constructed due to various legal violations. The owners claim the project violates their substantive due process rights because the proposal ignores land-use restrictions and puts several of the property owners in physical danger due to how close the pipeline would be to their properties.
The owners also claim procedural due process violations by FERC due to alleged “false information” that was “designed to mislead such owners into waiving or giving away their legal rights,” the complaint said. Property owners alleged they were asked to provide easements to the gas company before they became aware of the value of those easements or that providing the easements was part of the process for the pipeline to get approval.
The Nexus pipeline is a joint venture between DTE Energy and Spectra Energy Partners, a subsidiary of Enbridge Energy Partners. According to the pipeline's website, the line will be constructed from the unincorporated western Ohio community of Kensington, east between Akron and Canton and north to Ypsilanti, Mich. If completed, the company says, the pipeline will carry 1.5 billion cubic feet of natural gas per day.
FERC told Bloomberg BNA that it would not comment on this or other ongoing litigation.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111797029&vname=dennotallissues&fn=111797029&jd=111797029
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(ACC Mentioned) GOP Optimism on Chemical Plant Resolution Fades with Challenges
May 17, 2017 | BNA Daily Environment Report
By Sam Pearson
The expiration of the Congressional Review Act clock before it could be used against the chemical security rule is a win for public health and labor groups, though the final outcome of the regulatory process is less clear.
Public interest organizations remained in contact with members of Congress during the roughly four months since two CRA resolutions were introduced in the House (H.J. Res. 59) and Senate (S.J. Res 28) blocking an Environmental Protection Agency rule to update a safety program for high-risk chemical facilities.
Early optimism from pro-industry lawmakers like Sen. James Inhofe (R-Okla.) that the rule would be overturned faded as time ran out on the congressional calendar and EPA moved forward with a new regulatory process to delay and possibly replace the regulation. Had it passed within 60 congressional working days, lawmakers could have overturned the regulation by a simple majority vote and barred EPA from issuing a substantially similar rule in the future.
An Inhofe spokeswoman declined to say why the bill couldn't make it over the finish line. Lawmakers simply “ran out of time on it,” Daisy Letendre, Inhofe's spokeswoman, said in an email to Bloomberg BNA.
Meanwhile, Congress eliminated 14 other regulations, though about 35 were initially targeted for removal.
Groups like the American Chemistry Council said they were “disappointed” at the outcome, but credited lawmakers “for stepping up to the plate to champion this important legislation and to protect sensitive information that could be used to plan an attack on chemical facilities.”
‘Tough Vote’
Advocacy groups say it was more than running out of time—they may have not had the votes to pass the CRA. As the CRA route narrowed, the EPA's actions and litigation from industry organizations set a path for further evaluation of the regulation over the next several years.
“It could have been a very tough vote for some members to take,” Anna Fendley, legislative director for the United Steelworkers union, told Bloomberg BNA, “because if we have another chemical disaster, no one wants to be on the record contributing to that kind of accident.”
Among lawmakers who would have had to take the vote are Texas's 25 Republican House members, including Rep. Bill Flores (R), who represents West, Texas, where a chemical plant explosion killed 15 in 2013 and jumpstarted the rule's creation. Others in the group of representatives serve districts near the area and chemical plant corridors like the Houston Ship Channel complex.
Mathy Stanislaus, EPA's former assistant administrator for land and emergency management, who led development of the rule, told Bloomberg BNA he was “surprised” a CRA was considered.
“If people will take a hard look at what the rule does, as opposed to a narrative thrown out by a few, I am surprised that people would put responders in harm's way,” Stanislaus said.
Industry Groups, GOP Press On
Despite the failure of the CRA, industry organizations have regulatory and legal methods to block the rule or scale it back to something more preferable to companies if the EPA delays the rule to Feb. 19, 2019, as proposed.
When Inhofe took to the Senate floor May 11 as the CRA clock ran out, he praised his successful CRA resolution to eliminate the Securities and Exchange Commission's resource extraction disclosure rule and lauded the Trump administration's broader regulatory agenda as examples of “a huge, successful record.”
The CRA stops lawmakers from blaming “the unelected bureaucrats,” Inhofe said. “A CRA takes away that excuse because it forces them to actually get on record.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=111797024&vname=dennotallissues&fn=111797024&jd=111797024
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Wilson: U.S. Chemical Safety Rules Need to be Updated
May 16, 2017 | Houston Chronicle
By Mike Wilson
During 13 years of work as a professional firefighter, paramedic and EMT, I sometimes responded to an emergency at an industrial facility. If this required us to extricate a worker from a piece of machinery, we would start IV lines, administer morphine and oxygen, and pull the machine apart with hydraulic tools or carefully disassemble it.
At one commercial facility fire, we were preparing to force open an exterior door when an explosion occurred inside the building and a 55-gallon drum burst through the roof, landing in a nearby parking lot.
Sometimes we were called for a chemical spill, where dozens of workers were experiencing shortness of breath or other symptoms.
These industrial calls could be hair-raising: We had very little information about hazardous chemicals inside the building, and the facility owners rarely - if ever - invited us to train on their property. Arriving on scene, we often didn't know who was in charge at the facility; sometimes we faced locked doors as we attempted to access the emergency.
So I understand why the firefighters who responded to the April 17, 2013, report of a structure fire at the West Fertilizer Co. in West, Texas, were standing in the blast zone when a stockpile of 50 tons of fertilizer grade ammonium nitrate detonated: They didn't know it was there.TRANSLATOR
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And it's clear that several years earlier, the town planners didn't know it was there when they approved the construction of two schools and a nursing home less than 1,200 feet from the facility.
According to the U.S. Chemical Safety Board the detonation in West had the explosive force of 12.5 tons of dynamite. It took the lives of 12 firefighters and three residents, and it destroyed or damaged over 150 buildings. The explosion injured 260 people, yet had it occurred during the day instead of at 7:50 p.m., hundreds of school children would have been squarely in its path.
Most American companies no doubt run their operations responsibly. But West was not unusual: In the 10 years leading up to the explosion, there were 1,500 major industrial chemical accidents at U.S. companies, causing more than 17,000 injuries and 58 deaths, along with $2 billion in property damage. The record shows that our nation experiences a major industrial fire, explosion or chemical release every 2½ days.
So I was heartened to learn that this year, the Environmental Protection Agency had finally updated the safety requirements for these high-hazard industries. These requirements, known as the Risk Management Program, or RMP, were drafted 25 years ago following the Bhopal, India, chemical catastrophe, which killed thousands of residents in that town.
The updates make sense. They require companies to plan for emergencies with first responders and provide information to assist communities in making better zoning decisions. They require companies to learn from accidents so they don't happen again. While they're focused on preventing chemical disasters, they also improve the industrial emergency response systems on which we all depend.
I was surprised, therefore, to see Republicans pushing back. In Congress, a GOP majority attempted to use the Congressional Review Act to strike down the RMP updates and bar EPA from revisiting the RMP rules in the future, and then EPA Administrator Scott Pruitt delayed the updates for two more years.
To me, these actions suggest a lack of awareness among lawmakers in Congress about the dangerous industrial conditions that thousands of American workers, first responders and residents face every day.
With its updated rules, did EPA somehow overstep its responsibility to protect public safety and health? I don't think so. And I don't think most of us expected our representatives would work so hard to undo these kinds of basic protective measures.
Had the updated RMP rules been in place during my years in the emergency services, my co-workers and I might have been able to help companies prevent chemical accidents, and we certainly would have been able to respond more effectively and safely to those that occurred.
If Mr. Pruitt spent a day in the shoes of an American worker in these high-hazard industries, he would fight to implement the RMP improvements without delay. It's not hyperbole to say that lives are at stake.
The West explosion showed us how close to danger many of our communities and family members are. The risk is real.
Wilson, Ph.D, MPH, is director of the Occupational and Environmental Health Program at the BlueGreen Alliance. He previously served for 13 years in the emergency services as a firefighter, paramedic and EMT.
http://www.houstonchronicle.com/opinion/outlook/article/Wilson-U-S-chemical-safety-rules-need-to-be-11151002.php
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McAuliffe Aims to Regulate Power Plant Emissions
May 16, 2017 | Washington Post
By Alan Suderman
Gov. Terry McAuliffe announced plans Tuesday to regulate emissions from power plants, saying Virginia “cannot afford to sit idly by” as President Donald Trump rolls back his predecessor’s efforts to battle climate change.
The governor, a Democrat, ordered his administration to begin formulating regulations to “abate, control, or limit” carbon dioxide emissions from power plants fired by fossil fuels. The proposed regulations are due to be presented to the state Air Pollution Control Board by the end of the year.
Virginia Attorney General Mark Herring issued a legal opinion last week saying the board had the authority under current law to set a statewide emissions cap on new and existing power plants.
McAuliffe said at a news conference in Alexandria he would prefer a coordinated effort to limit carbon emissions like the Clean Power Plan, a centerpiece of former President Barack Obama’s efforts to curb climate change. But Trump has said the regulations are too costly and vowed to scrap it.
“Unfortunately the news out of this White House is alarming,” McAuliffe said. “The citizens of our commonwealth want and expect us to confront this issue.”
McAuliffe directed that the proposed carbon emission limits are similar to what other states that limit carbon have done. Several states in the Northeast are part of the Regional Greenhouse Gas Initiative, a cap-and-trade program that has reduced carbon dioxide emissions from electrical generation in the region by 40 percent from 2005 levels. And California has set a goal to have half of its energy from renewable sources by 2030 and a 40 percent reduction of greenhouse gases.
The governor, who has not been able to score major wins with the GOP-controlled General Assembly, has increasingly turned to executive action to further his policy goals.
Republicans panned McAuliffe’s announcement Tuesday as “Washington-esque in both its nature and scope.”
“The governor is attempting to implement a failed national policy in the Commonwealth that will further hamper economic growth,” House Speaker William J. Howell said.
But McAuliffe’s plans were hailed by environmentalists, who helped the governor get elected in 2013 but have been mixed on his record in office.
Billionaire environmentalist Tom Steyer, a major McAuliffe backer, praised the governor for “standing up” to Trump.
Dominion Energy, which owns the largest electric utility in the state, is committed to reducing carbon emissions and fully expects those emissions to be regulated, said spokesman David Botkins. Dominion was one of the few energy companies that voiced support for the Clean Power Plan.
McAuliffe has been flirting with a possible run for president in 2020 and made his announcement a few hours before he was set to give a speech at Washington conference featuring other potential Democratic presidential candidates.
https://www.washingtonpost.com/local/mcauliffe-aims-to-regulate-power-plant-emissions/2017/05/16/2b2df5e0-3a58-11e7-a59b-26e0451a96fd_story.html?utm_term=.94c69c44f80b
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Tillerson Gives Nod at Arctic Meet to Climate Change Action
May 16, 2017 | Reuters (In The New York Times)
By Timothy Gardner
U.S. Secretary of State Rex Tillerson signed an agreement recognising the landmark Paris climate accord at a meeting of Arctic nations in Alaska on Thursday, but said President Donald Trump was not rushing to decide whether to leave or weaken U.S. commitments to the pact.
Trump's efforts to dilute U.S. climate policies have made the country an outlier on the issue and put Tillerson in an awkward position at a meeting of the Arctic Council.
The council meets every two years to tackle climate change and other problems facing the North. The Arctic is warming at a faster pace than any other part of the world, forcing native villagers on coasts and rivers in the region to move to higher ground as permafrost and glaciers melt and seas rise.
Global warming also puts stress on wildlife such as walruses and polar bears as they lose their habitat areas.Continue reading the main story
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The Arctic agreement Tillerson signed with foreign ministers from the other seven nations of the council, including Russia, Canada and Norway, made only a passing reference to the Paris pact. It noted "entry into force" of the pact and its implementation and called for global action to reduce greenhouse gas pollution.
Still, Tillerson's signing of the document surprised a source close to the State Department. "We'd heard ... that there would likely be a significant U.S. effort to redline or even remove entirely the Paris and climate language," said the source, who spoke on condition of anonymity due to the sensitive nature of the talks.
Tillerson signed the agreement at a dinner the council members ate together on Wednesday night after hours of debate before the meal, Denmark's Foreign Minister Anders Samuelsen told Reuters. The ministers stressed to Tillerson the business benefits, as well as the advantages to the environment and Arctic natives, of taking action on climate, Samuelsen said. Tillerson, a former chief executive of Exxon Mobil is one of Trump's advisers who supports staying in the agreement.
"He was happy about it; he seemed to be satisfied. We all were because it's a big step," Samuelsen said.
A local tribal leader also pressured Tillerson to act at a celebration of the council on Wednesday. "We the tribes ask you to listen to our land. It's telling us to implement promises to slow the change," Chairman Victor Joseph of the Tanana Chief Conference said before Tillerson was introduced at the celebration.
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It was unclear how much influence the Arctic agreement, signed late on Wednesday and made public on Thursday, would influence Trump's decision.Newsletter Sign UpContinue reading the main storyThe Interpreter Newsletter
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Tillerson told the council the Trump administration was reviewing how it will approach climate change but was not going to rush to make a decision on Paris. "We are appreciative that each of you has an important point of view," said Tillerson. "We are going to make the right decision for the United States," said Tillerson.
Trump is expected to make a decision on Paris after a Group of Seven summit at the end of May.
Finland's Foreign Minister Timo Soini, whose country will chair the council for the next two years, praised U.S. leadership in the Arctic Council, but added that the Paris pact is an important tool in fighting climate change.
Arctic warming is thawing permafrost and melting sea ice, causing damage to infrastructure but also opening up new oil reserves, shipping routes and access to fisheries - intensifying a decades-long race for Arctic resources.
Adding pressure on Trump, scientists from the United States and other Arctic nations issued a report ahead of the meeting warning that the warming could lead to trillions of dollars worth of damage to buildings, roads and other infrastructure this century..
The council also signed an agreement on sharing science and data on the Arctic, an effort led by Russia and the United States, and addressed Arctic search and rescue and communications.
Trump's administration has already reversed Obama-era bans on offshore drilling in certain parts of the Arctic, a turn that could intensify competition for resources in the region with major oil producer Russia.
Russia has beefed up its military presence in the Arctic to levels not seen since the fall of the Soviet Union, as global interest in the region's oil, gas and rare earth metals heats up.
https://www.nytimes.com/reuters/2017/05/16/world/europe/16reuters-arctic-summit.html
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Senate Panel Poised to Markup Controversial Regulatory Reform Bills
May 16, 2017 | Inside EPA
The Senate Homeland Security and Governmental Affairs Committee is slated May 17 to markup a package of bills aimed at overhauling how EPA and other agencies craft rules, guidance and other policies, including a controversial measure that environmentalists and other critics say would preempt federal environmental laws.
During a May 17 business meeting, the committee is slated to mark up S. 951, which generally amends the Administrative Procedure Act (APA) and creates a host of new procedural steps for agencies before issuing final rules, imposing new judicially reviewable cost-benefit requirements and adding a host of other steps that will likely hamper development of agency rulemakings.
The bill was introduced by Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) along with Sens. Orrin Hatch (R-UT) and Joe Manchin (D-WV)
But the bill is being marked up before the committee committee holds a hearing on the legislation, prompting suggestions from some that Republicans and the bill's supporters are viewing it more as a tool for “political purposes” and that the majority does not expect the measure to be enacted.
Many industry officials have acknowledged they face a tough path to winning broad enough support from Democrats to overcome a likely filibuster.
Nevertheless, the bill is a top priority for industry groups, who are seeking broad support. Paul Noe, of the American Forest and Paper Association, in a May 15 blog in advance of the markup, urged support for the measure, and sought to win over Democrats concerned about a regulatory rollback.
“If reasonable minds can agree that the goal of regulation is to enhance, not undermine, societal well-being, then S. 951 can bring the most important statutory change to the regulatory process since the enactment of the Administrative Procedure Act over 70 years ago,” Noe writes.
“The [bill] would do so by elevating to binding law the eminently reasonable principle required by presidential directives for over 35 years: in designing major rules, federal regulators should conduct benefit-cost analysis to consider improtant tradeoffs and design regulations to do more good than harm.”
But opponents of the Senate bill, and its House companion, are also issuing stern warnings about the measure's effects. Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, said the bill would “make it impossible for federal agencies to regulate effectively.”
“Many critically important safeguards that protect public health, consumers, and the environment would never see the light of day whenever the regulated industry raised an objection,” he added in a May 15 statement.
The institute's analysis of the bill criticizes in particular requirements that anyone can petition an agency to conduct an oral evidentiary hearing in a rulemaking with an annual effect on the economy greater than $100 million: “The Senate bill starts from the false premise that the current regulatory process does not have enough 'checks and balances.'' In fact, agencies regulate only when authorized to do so by statute. Congress has entrusted agencies with ensuring the safety of our workplaces and our roads, protecting the quality of the air we breathe and the water we drink, and addressing many other issues,” the group's issue paper states.
“One thing is clear, however: such public hearings have been widely known for decades to be complete wastes of time and resources.”
Other advocacy groups such as the Natural Resources Defense Council (NRDC) also previously slammed the bill, similarly arguing that it would “cripple the government's ability to protect people from dirty air, contaminated food, polluted waters and other serious health threats.”
The Senate panel is also slated to markup a series of other measures, including:
S. 21, known as the Regulations from the Executive in Need of Scrutiny Act (REINS), which would require Congress to review and retroactively approve all existing reulgations and prevent agencies from issuing required rules unless approved by Congress;
S. 34, the Midnight Rules Relief Act of 2017, which would amend the Congressional Review Act to allow Congress to consider a joint resolution to disapprove multiple regulations from federal agencies for review within the last 60 legislative days of Congress during the final year of a President's term; and S. 579, which would require agencies to publish advance notice of a rulemaking “not later than 90 days before” a notice of proposed rulemaking for a major rule that is likely to have an annual effect on the economy of $100 million or more, result in an increase in costs or prices for consumers, industries, government agencies, or geographic regions, or “significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. Enterprises to compete with foreign-based enterprises.”
https://insideepa.com/daily-feed/senate-panel-poised-markup-controversial-regulatory-reform-bills
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Groups Ask Court to Toss Trump Executive Order
May 16, 2017 | E&E News PM
By Arianna Skibell
Environmental and public interest groups have asked a federal court to declare one of President Trump's regulatory executive orders unlawful and set it aside.
The Jan. 30 order requires executive branch agencies to offset the cost of every new rule by repealing two old ones. It also establishes a regulatory budget of sorts, for which the fiscal 2017 cap is zero dollars.
The Natural Resources Defense Council, along with Public Citizen and the Communications Workers of America, say the order exceeds the president's constitutional authority by directing agencies to break the law to implement it, they wrote in a motion for summary judgment filed last night.
Patti Goldman, managing attorney with Earthjustice and counsel for the plaintiffs, said she hopes the U.S. District Court for the District of Columbia will declare Trump's regulatory program and associated guidance unconstitutional and void.
Since the president signed the document, the Office of Management and Budget has released two guidance documents directing agencies on implementation (Greenwire, April 7).
"What we have here is the president unilaterally establishing a regulatory budget and trading program," Goldman said. "That is in no statute passed by Congress. The president is creating law, and directives in the executive order violate statures under which agencies are operating."
The original complaint, filed in February, states that agencies cannot follow the order without breaking the laws under which they operate or violating the Administrative Procedure Act.
To follow the "one in, two out" mandate, agencies would be forced to repeal rules needed to protect health, safety and the environment, the groups argue (Greenwire, Feb. 8).
Repeal of a rule generally takes the same amount of time as promulgating one. This means repealing two rules before a new one can be implemented will automatically slow the regulatory process, Goldman said.
"It will necessarily delay needed protections," she said.
The Trump administration last month asked the federal court to throw out the lawsuit, saying the order was a "valid exercise" of President Trump's powers.
The administration said both the environmental and public interest groups lack legal standing and that they fail to state a claim that could be addressed by the courts (Greenwire, April 11).
While legal experts agree the case raises serious questions, the court could rule that the order isn't ripe for review because agencies have yet to take concrete actions in response to the order (Greenwire, Feb. 9).
Judge Randolph Moss is set to hold a status conference next Tuesday to set up a briefing schedule.
https://www.eenews.net/eenewspm/2017/05/16/stories/1060054627
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