Preview Newsletter
ACC PM 27/7/17
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(ACC Blog) More Plastic, Less Waste? Yes. Seriously.
Jul 27, 2017 | American Chemistry Matters
By Steve Russell
A new study in the journal Science Advances looks at the “Production, Use and Fate of All Plastics Ever Made.” We welcome this new study, and the opportunity it provides to context to the important discussions around plastics’ growth and post-use management. -
NGOs Demand Removal of Phthalates from Cheese Products
Jul 27, 2017 | Chemical Watch
A coalition of NGOs is demanding that Kraft, and other processed cheese producers, find and remove the sources of phthalates in their products – an action at least one manufacturer may be ready to take. -
Hewlett Packard Pledges to Complete Phthalates Phase Out
Jul 27, 2017 | Chemical Watch
By Tammy Lovell
Electronics giant Hewlett Packard (HP) plans to eliminate the use of phthalates by the end of 2018. -
Canada Clears Metal Industry Waste Products in UVCB Screening
Jul 27, 2017 | Chemical Watch
By Andrew Turley
The Canadian government has provisionally concluded that 57 substances, including waste substances from the metals industry, are not harmful to consumers or the environment due to low exposure. -
Furniture Trade Body Calls for Clarity on Recyclable Chemicals
Jul 27, 2017 | Chemical Watch
By Tammy Lovell
The European Furniture Industries Confederation says the use of flame retardants and other chemicals may prevent the furniture sector from fully entering the circular economy. -
Watchdog Rejects NGO Complaint on Cosmetics Animal Testing
Jul 27, 2017 | Chemical Watch
The European ombudsman has dismissed a complaint by a UK-based animal rights NGO, which argued that the European Commission's approach to animal testing for cosmetics products is misleading. -
Germany's Baua Publishes Report on Chemicals Activity
Jul 27, 2017 | Chemical Watch
Germany's Federal Institute for Occupational Safety and Health (Baua) has released its 2016 annual report, which details the research, policy advice and legal tasks for safe chemicals and products it undertook during the year. -
Echa Round-Up
Jul 27, 2017 | Chemical Watch
Echa has produced an In Brief document to explain how and when an exporter can follow a simplified procedure for notifying an export of a prior informed consent (Pic) chemical and get a reference identification number (RIN). This is called a special RIN request. -
Fracking Rule Finally Gets Big Day in Court
Jul 27, 2017 | E&E Climatewire
By Ellen M. Gillmer
An Obama-era rule for hydraulic fracturing on public and tribal lands finally heads to appellate court today after years of legal turmoil. -
Budget 'Constraints' Hamper Staff Hiring
Jul 27, 2017 | E&E Greenwire
By Kevin Bogardus and Corbin Hiar
The U.S. EPA inspector general said the Chemical Safety Board's tight budget over the years has hurt the agency's ability to hire and retain staff. -
What's Cap and Trade? Most Residents Have No Idea — Survey
Jul 27, 2017 | E&E Climatewire
By Anne C. Mulkern
Most Californians knew nothing about cap and trade, even as state lawmakers this month engaged in a high-stakes fight over whether to keep the program alive.
Industry and Association News
LCSA News - There are no clips to report at this time.
Chemical Management News
Energy News
Chemical Security News
Transportation and Infrastructure News - There are no clips to report at this time.
Environment News - There are no clips to report at this time.
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(ACC Blog) More Plastic, Less Waste? Yes. Seriously.
Jul 27, 2017 | American Chemistry Matters
By Steve Russell
A new study in the journal Science Advances looks at the “Production, Use and Fate of All Plastics Ever Made.” We welcome this new study, and the opportunity it provides to context to the important discussions around plastics’ growth and post-use management.
Let’s start with a fact that might be counter-intuitive: plastics are highly efficient materials that help us conserve resources and reduce waste. That’s right: plastics actually reduce waste.
Why is that? Because to have the benefit of the products we enjoy today without plastic we’d need to use more material—much more—to do the same job. In fact, a 2016 study by the natural capital accounting firm Trucost looked at many different materials and found that if we didn’t use plastics, per-person waste generation would be roughly four times greater than it is now.
That study also found that replacing plastics with alternatives would increase the amount of energy and transportation fuel we use, raise greenhouse gas emissions, and result in more litter.
In total, Trucost found that using plastics instead of alternatives in today’s consumer goods and packaging reduces environmental impacts by nearly four times.
Let that sink in for a minute. It provides a lot of insight into why we use so much plastic today. Plastics are lightweight, highly efficient, cost-effective materials that do their jobs and do them well. A small amount of plastic packaging for fresh fruits and vegetables extends shelf life, and reduces both food waste and the land and water resources used to grow the food. For example, just 1.5 grams of plastic can extend shelf life for a cucumber by up to 14 days. And smart plastic packaging for grapes can lead to a 20% reduction in in-store food waste.
The same Trucost study also identified opportunities to further strengthen plastics’ environmental benefits, such as new designs to use less material and lightweight cars so they use less energy. And we’re doing that; innovations like those are how we stay in business.
In the end, if we failing to manage plastics after we’ve used them the benefits are lost. That’s why America’s plastic makers support programs designed to dramatically increase plastics recycling and recovery, including: the Wrap Recycling Action Program, a public-private partnership to increase recycling of plastic wraps and bags at stores; Materials Recovery for the Future, which is researching how to process more flexible packaging at recycling facilities; Keep America Beautiful’s “I Want to be Recycled” campaign, which strengthens consumer awareness and motivation; and The Recycling Partnership, which works with communities to improve local recycling.
In addition, plastics makers regularly explore innovations in design, process enhancements, transportation efficiencies, and advancements in materials and how we use them—all of which can and will enhance the degree to which plastics benefit the environment.
There is clearly still work to be done to reduce consumer waste, reuse what we can, and recycle or recover the energy in the rest. But we are moving in the right direction, and it’s a challenge this industry is engaged to address.
https://blog.americanchemistry.com/2017/07/more-plastic-less-waste-yes-seriously/
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NGOs Demand Removal of Phthalates from Cheese Products
Jul 27, 2017 | Chemical Watch
A coalition of NGOs is demanding that Kraft, and other processed cheese producers, find and remove the sources of phthalates in their products – an action at least one manufacturer may be ready to take.
The demand follows a study that found the chemicals in 29 of 30 tested cheese products, which included ten varieties of packaged macaroni and cheese, as well as sliced processed cheese and packaged natural cheeses.
Bis(2-ethylhexyl) phthalate, or DEHP, was found in all but one of the products. The study said the substance was discovered at a much higher level than others and "accounted for nearly 60% of all phthalates found in the cheese product items that were tested". Diethyl phthalate, or DEP, was found in 27 of them.
The average phthalate concentration in powder from macaroni and cheese mixes was more than four times higher than in natural cheeses, and those in sliced processed cheese were three times higher.‘Message to entire industry’
Following release of the study, the NGOs backing it launched a "Klean Up Kraft" public campaign, and have called on the company to "adopt an action plan to eliminate all sources of phthalates in your food products as soon as practicable".
In a statement, Kraft said that the "trace amounts" of phthalates found in the study "are more than 1,000 times lower than levels that scientific authorities have identified as acceptable".
Mike Belliveau, executive director of the Environmental Health Strategy Center - one of four advocacy groups that funded the report - said the publicity focused on Kraft because they are the "market leader".
But he said that their message is one to the entire industry, and they are in dialogue with other companies.
"One industry leader has pledged to work in partnership with us to eliminate phthalates in their products," he added, although he declined to name them.Phthalates in cheese products
Phthalates are not intentionally added to food, but are classified as "indirect" food additives. They canbe used as plasticisers, binders and coating agents in packaging materials and in food processing equipment. Because they bind with fats, they tend to build up in fatty foods like cheese.
The current study wasn't designed to determine how phthalates got into the cheese products, Mr. Belliveau said, but "we know where they are coming from and how to eliminate them."
He said research has suggested that in the dairy industry, it is migrating into the food at "every point along the supply chain, from plastic tubing in milking equipment" to wrappers and even printed labels.Restrictions on use
Proponents of restricting phthalates argue that they have been linked to reproductive and developmental problems, and some have been banned or regulated to varying degrees around the world.
Ten NGOs filed a petition a year ago, asking the Food and Drug Administration to revoke authorisation for the use of 30 ortho-phthalates in food contact materials. Industry strongly opposed it.
An FDA spokeswoman said it would not comment specifically on the cheese study or the status of the petition. The agency must believe there is "sufficient scientific information to demonstrate that the use of a substance in food contact materials is safe under the intended conditions of use, before it is authorised for those uses," she said in email, and "the FDA continues to monitor literature and research on these compounds as it becomes available."
The EU restricts phthalates to very low levels in food contact materials. DIBP, BBP, DEHP and DBP are listed as substances of very high concern (SVHCs) under REACH because of their reproductive effects.A petition on DINP is under consideration; the chemical is already restricted under REACH in articles that children may put in their mouths.
Kraft did not respond to an inquiry on whether they use different packaging in the EU.
https://chemicalwatch.com/57944/ngos-demand-removal-of-phthalates-from-cheese-products
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Hewlett Packard Pledges to Complete Phthalates Phase Out
Jul 27, 2017 | Chemical Watch
By Tammy Lovell
Electronics giant Hewlett Packard (HP) plans to eliminate the use of phthalates by the end of 2018.
In its recently published sustainability report, HP says that it has already eliminated four phthalates - DEHP, DBP, BBP and DiBP - from all personal systems and inkjet printer products launched in 2016.
In 2015, the four phthalates were added to the list of substances banned from products sold in the EU, under the Directive on the restriction of hazardous substances (RoHS) in electrical and electronic equipment. The ban applies to most equipment from 22 July 2019, and to medical devices and monitoring and control instruments 24 months later.
Materials programme manager, Jennifer Reece, told Chemical Watch that although the legislation was one driver for removing the chemicals, the company had already stopped their use in certain product categories three years ahead of the Regulation, in support of its internal company goal.
She added that HP was one of relatively few companies that pushed for phthalates to be restricted under RoHS and also the case for banning low-halogen materials, to be reviewed under the next recast of the Directive.
Three quarters of 'personal systems' product groups, such as notebooks and workstations, sold in 2016 were classified as low halogen, as were all disk drives, application-specific integrated circuits and memory modules.
The company’s efforts to phase out substances of concern also focus on brominated flame retardants (BFRs) and PVC.
According to the report, HP has reduced PVC usage by shortening power cords and can provide these PVC-free for PCs and printers in many countries. But because some countries, such as China and South Korea, do not have a safety standard for PVC-free power cables, it cannot offer the option there.
Thermoplastic elastomers (TPEs) are used as an alternative to PVC in power cords, said Ms Reece, as they are inherently flexible and eliminate the need for phthalate plasticisers. But because PVC is inherently flame retardant due to the high chlorine content, the use of non-PVC plastic requires the addition of flame retardants such as BFRs, which are themselves substances of concern. So to avoid using "undesirable additives", the company used the GreenScreen for Safer Chemicals tool developed by NGO Clean Production Action to identify alternatives to PVC.
Transparency efforts
Last year, HP participated in the Chemical Footprint Project, which tracks companies' progress towards safer chemicals, by measuring the total mass of substances of concern in their products. The project also provides a standard benchmark for companies to evaluate progress towards reducing these.
Ms Reece said the company plans to reduce its chemical footprint in 2017 by:
· further reducing PVC in its personal systems portfolio;
· "continuing to eliminate the use of phthalates, with expected completion by end of 2018"; and
· working to restrict n,n-dimethylacetamide (DMAC) in products by next year.
She added that it also aspires to zero exposure of workers to toxic chemicals in electronics manufacturing processes, and is working on this with industry groups, such as the Clean Electronics Production Network. This includes creating case studies for replacing priority substances with safer alternatives; a pilot programme for more comprehensive monitoring of worker exposure; and a common standard for reporting substances used.
HP publishes its REACH SVHC declarations as well as its IT ECO declarations under industry standard ECMA-370.
https://chemicalwatch.com/57929/hewlett-packard-pledges-to-complete-phthalates-phase-out
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Canada Clears Metal Industry Waste Products in UVCB Screening
Jul 27, 2017 | Chemical Watch
By Andrew Turley
The Canadian government has provisionally concluded that 57 substances, including waste substances from the metals industry, are not harmful to consumers or the environment due to low exposure.
The substances are used in metal smelting and refining, as well as the manufacture of automotive parts, iron and steel, pulp and paper, and cement. They contain a wide range of metals.
The substance ‘solutions, precious metal hydrometallurgical’, for example, may contain metal ions of palladium, platinum, gold, silver and small amounts of rhodium, ruthenium, iridium and other non-ferrous elements, such as copper, nickel, cobalt, lead, bismuth, antimony, arsenic, selenium and tellurium.
Each is a ‘substance of unknown or variable composition, complex reaction products and biological materials’ (UVCB). Such substances cannot be defined in terms of composition but are instead normally identified according to the processes by which they are produced. Consequently the assessment contains a wide range of – in some cases anachronistic – industry terms for material types, including: slags; dust; matte; slimes and sludges; liquors; bullion; dross; sponge; waste solids; wastewater; residues; ash; calcines; and fumes.
The assessment report says that many of the substances are known to be hazardous. Some even have components that are already on Schedule 1 of the Canadian Environmental Protection Act, 1999 (Cepa), such as lead, a powerful neurotoxicant that is particularly harmful to development in children. This means that measures - some federal, some voluntary - are already in place to minimise releases from the relevant sites, limiting consumer and environmental exposure.
Furthermore, according to the report, many of the substances are limited to only a few sectors and are expected to be "site-restricted" or "sector-restricted".
But the draft screening assessment takes an unusual approach in so far as it foregoes any analysis of hazard on the basis that the potential exposures are either ‘negligible’ or ‘not expected’.
This concludes that they do not meet any of the criteria set out in section 64 of Cepa. The government is therefore proposing to take no further action against them.Exposure
For the exposure assessment, the report defines five substance categories: no longer manufactured or imported; intermediate; waste; byproduct; and substance with other commercial uses in other sectors.
It assumes that exposure is "non-existent" for the ‘no longer manufactured or imported’ category and negligible for the intermediate category. For the wastes category, this may be negligible "when considering measures that exist to limit exposure, especially when sent off-site", it says.
For the byproducts category, exposure may be considered "acceptable". "Permitted uses may depend on meeting certain criteria from provincial regulations," the report adds.
Lastly, the ‘substances with other commercial uses in other sectors’ category "may require further assessment if the exposure potential is unknown".
The report assigns the category label on the basis of information from regulatory surveys, voluntary industry submissions, literature reviews, material safety data sheets and consumer product safety.Thiols and arenes
In two further draft screening assessments, the Canadian government has proposed to conclude that four thiols and two arenes are also not harmful under Cepa.
Three of the thiols - dimethyl sulfide, benzyl disulfide and grapefruit mercaptan - are used as food flavouring agents. The other - tert-dodecyl mercaptan - is used in the manufacture of food packaging materials and may be present as an impurity in paints and coatings.
Dimethyl sulfide is also used as an odourant in natural gas, while tert-dodecyl mercaptan has additional uses in vinyl coverings and paper products, as well as plastic, rubber and metal materials.
One of the arenes - cumene - is used primarily as a chemical intermediate but also used in consumer products, including adhesives, paints, automotive-related products and lubricants. The other, DMBA, is used as a research chemical in laboratories.Next steps
The Canadian government has launched 60-day public consultation periods for each of the assessments. Interested parties have until 20 September to submit comments.
The final assessments are expected in July 2018.
https://chemicalwatch.com/57934/canada-clears-metal-industry-waste-products-in-uvcb-screening
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Furniture Trade Body Calls for Clarity on Recyclable Chemicals
Jul 27, 2017 | Chemical Watch
By Tammy Lovell
The European Furniture Industries Confederation says the use of flame retardants and other chemicals may prevent the furniture sector from fully entering the circular economy.
The group was among organisations to respond to a consultation on the European Commission’s roadmap on chemicals, products and waste. A recommendation on policy options is expected by the end of the year.
Efic's position paper says that the presence of harmful chemicals in the material to be reused is a major problem for the furniture sector. These can include flame retardants, phthalates and soil repellent chemicals.
Furniture companies face "concrete problems when trying to assess the full list of chemical substances contained in articles", because there is not enough information available about the presence of substances of concern in them, it says.
Efic calls for a "deep reflection" on how to promote better tracking of chemicals in products and ensure full transparency on which are incorporated across the supply chain.
The trade body also urges the Commission to set clear rules on which substances can and cannot be used, and to consider producing a list of chemicals that undermine recyclability in order to forbid their use or limit their concentration during the production phase. Any solution, it says, must also apply to imported articles.
Roberta Dessi, secretary general of Efic, told Chemical Watch it was difficult for SMEs to know which substances that are allowed on the market will be problematic for recycling in the future.
Although companies have clarity about the use of SVHCs through the REACH Regulation, they needed similar guidance about substances that can be recycled, she said.
She added that it was important to create a level playing field for all companies, as well as rules that apply equally to both European producers and exporters to the EU.Flame retardants
Products containing fire retardant chemicals, says Efic, are of particular concern because "they cannot be safely recycled for material reuse, thus preventing better and greener waste handling."
Flame retardants in furniture reduce the durability of products, resulting in a shorter product lifespan, while the end-of-life treatment of items containing them is expensive and might be more dangerous, due to the release of toxic fumes in the atmosphere.
A paper published by Efic and ten other organisations last year entitled 'The Case for Flame Retardant Free Furniture' called for a mandatory harmonised flammability test method for upholstered furniture where flame retardants are not necessarily needed.
Member states have country-specific fire safety regulations and standards for the furniture. The "open flame", or "match test", required by the British and Irish fire safety test method means manufacturers must use flame retardants which are not required in other EU countries.
Last year, Efic lodged a complaint with the Commission on the basis that these standards pose a barrier to trade in the single market. The UK government also consulted on proposals to amend its furniture and furnishing fire regulations. These include provisions to amend the structure of the match test to make it more reliable.
In its consultation response, the trade body says the revised test criteria "still require a complex system of testing methods and routes for compliance; they impose high costs in the production and the need for flame retardants to comply still remains."
Instead, it proposes a harmonised smoulder ignition test in the EU, and removing the match test for furniture products.
https://chemicalwatch.com/57916/furniture-trade-body-calls-for-clarity-on-recyclable-chemicals
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Watchdog Rejects NGO Complaint on Cosmetics Animal Testing
Jul 27, 2017 | Chemical Watch
The European ombudsman has dismissed a complaint by a UK-based animal rights NGO, which argued that the European Commission's approach to animal testing for cosmetics products is misleading.
The complaint, filed last year by the People for the Ethical Treatment of Animals (Peta) UK, referred to a joint statementissued by the Commission and Echa in 2014 on the conduct of animal tests used in cosmetics.
The statement clarified the relationship between the cosmetics Regulation, which bans animal testing, and REACH, which allows it under certain circumstances.
It says that while registrants of substances exclusively used in cosmetics may not perform the testing, they are permitted to conduct those tests:
· for substances used for a number of purposes; and
· when assessing the risk of workers' exposure.
Peta says that the Commission and Echa are allowing cosmetics manufacturers to violate the EU's ban "by permitting the ingredients to be tested on animals under REACH". As a result, certain cosmetics are being wrongly labelled as "free from animal testing", it says.
Peta wanted their statement withdrawn, which it says is contrary to EU law and to the cosmetics Regulation in particular. But last week the ombudsman concluded there was "no maladministration" by the Commission and Echa.
It says that the joint statement is "not contrary" to the cosmetics Regulation or to EU law; that both the Commission and Echa have a right to issue one; and "no clarifications are needed concerning the labelling of cosmetics" as the issue falls under the cosmetics Regulation and not REACH.
The joint statement is concerned only with how REACH is interpreted and applied in light of the cosmetics Regulation, the ombudsman adds, and does not purport to deal with the interpretation of the latter.
Call for guidance
Following the decision, Peta has called on the Commission and member states to publish EU-wide guidance to clarify how the animal testing ban on cosmetics should be interpreted and applied.
"Without such guidance, cosmetics manufacturers and distributors remain in a state of legal uncertainty," the NGO's Dr Julia Baines says.
Peta also wants the Commission and Echa to amend their statement to make it clear to registrants that it deals "only with REACH and not the interpretation and application of the cosmetics Regulation".
The ombudsman says it agrees with Peta that it is not legally binding: "The fact that the Commission and Echa may issue such guidance does not prejudge the issue of whether their guidance is correct."
Another NGO, Cruelty Free International (CFI), also raised the issue of inconsistency between the cosmetics Regulation and REACH in comments to the Commission's REACH Review earlier this year.
https://chemicalwatch.com/57945/watchdog-rejects-ngo-complaint-on-cosmetics-animal-testing
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Germany's Baua Publishes Report on Chemicals Activity
Jul 27, 2017 | Chemical Watch
Germany's Federal Institute for Occupational Safety and Health (Baua) has released its 2016 annual report, which details the research, policy advice and legal tasks for safe chemicals and products it undertook during the year.
The projects included:
· guidance on the country's hazardous substances Ordinance;
· arguments in favour of classifying titanium dioxide as a category 2 carcinogen; and
· its Committee on Hazardous Substances adopting decisions on technical rules for hazardous substances.
In January this year it invited comments on its update of technical rules for hazardous substances.
https://chemicalwatch.com/57930/germanys-baua-publishes-report-on-chemicals-activity
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Jul 27, 2017 | Chemical Watch
Submitted CLH proposals
Echa has received harmonised classification and labelling (CLH) dossiers for:
· citral; and
· geraniol.
Denmark submitted both with the proposed future entry of skin sensitiser 1A, H317 – may cause an allergic reaction. They are common ingredients in the flavour and fragrance industries.
CLH intentions
And the agency has added harmonised classification and labelling (CLH) intentions to its registry for:
· metal salts of 2-ethylhexanoic acid with the exception of those specified elsewhere in this annex. Spain is expected to submit the dossier by 31 July, with a proposed future entry in Annex VI of the CLP Regulation of reprotoxicity 2, H361d – a warning that it is suspected of damaging the unborn child; and
· 1,2,4-triazole. The dossier is expected from Belgium by 8 September, with a proposed future entry in Annex VI of the CLP Regulation of acute toxicity 4, H302, eye irritation 2, H319, and reprotoxicity 1B, H360FD.
Document for exporters explains the special RIN request
Echa has produced an In Brief document to explain how and when an exporter can follow a simplified procedure for notifying an export of a prior informed consent (Pic) chemical and get a reference identification number (RIN). This is called a special RIN request.
https://chemicalwatch.com/57870/echa-round-up
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Fracking Rule Finally Gets Big Day in Court
Jul 27, 2017 | E&E Climatewire
By Ellen M. Gillmer
An Obama-era rule for hydraulic fracturing on public and tribal lands finally heads to appellate court today after years of legal turmoil.
The 10th U.S. Circuit Court of Appeals will hear oral arguments this morning over whether the Interior Department's long-crippled fracking rule exceeds the agency's authority.
The underlying legal question is weighty: Does the federal government have the power to regulate fracking at all?
Recent deregulatory efforts have given rise to another debate: Should the court weigh in on the authority issue if the Trump administration plans to scrap the regulation anyway?
It's unclear whether the three-judge panel hearing the case will focus on the merits or the procedural questions, but lawyers from the federal government, states, industry, the Ute Indian Tribe and environmental groups are prepared to address both.
Here's a recap of the legal issues at play:Federal authority over fracking
In June 2016, Wyoming District Judge Scott Skavdahl shocked the Obama administration and its allies with a sweeping ruling that the federal government does not have authority to regulate fracking.
The decision embraced an argument from states challenging the regulation — Wyoming, Colorado, North Dakota and Utah — that two federal laws effectively removed fracking from U.S. government oversight.
The states argue that the Safe Drinking Water Act and the Energy Policy Act of 2005 remove most fracking applications from U.S. EPA oversight and that the exemption extends to other federal agencies, including Interior and its Bureau of Land Management. Congress wanted to leave fracking oversight in the hands of state governments, the states say.
The Independent Petroleum Association of America and the Western Energy Alliance, the two industry groups involved in the case, initially pushed separate procedural arguments against the fracking rule but have now largely adopted the states' position.
"Characterizing this rule as an update of previous regulatory efforts is a misrepresentation," said BakerHostetler attorney Mark Barron, who is representing the industry groups. "It's attempted to regulate conduct it has not regulated in the past."
The Obama administration quickly appealed the decision to the 10th Circuit last summer, calling the ruling "manifestly incorrect" and a misinterpretation of federal law. Government lawyers maintain that public lands laws like the Mineral Leasing Act and the Federal Lands Policy and Management Act give the government broad authority to regulate activities on public lands.
The Trump administration agrees, to some extent. In a supplemental brief in May, Justice Department lawyers representing Interior argued that the lower court's decision was a "serious and consequential error."
But the Trump administration is working to roll back the fracking rule and is asking the court to pause court proceedings while that process plays out (Energywire, May 8).
It's environmental groups that are expected to push the hardest on the merits arguments. The Sierra Club, Earthworks and several other groups have been eager for their day in court since the fracking rule was first sidelined by the district court in 2015. An appeal over the lower court's preliminary injunction of the rule was still pending when the court's final decision came down last year.
"We've been seeking appellate review for nearly two years of Judge Skavdahl's ruling, and we're looking forward to having our day in court and getting appellate review of that decision," said Earthjustice attorney Mike Freeman, who is representing the environmental intervenors.Freezing the case
The environmental groups are alone in their desire for a core merits ruling from the 10th Circuit right now. Every other party to the litigation filed briefs this summer urging the judges to hold the case in abeyance.
That's because the Trump administration is actively working to undo the regulation at the center of the case. Just this week, BLM published a formal proposal to rescind the fracking rule because it does not align with the president's domestic energy priorities (Greenwire, July 24).
DOJ lawyers flagged the latest development in a court filing this week, noting that the proposed rollback "is consistent with the description that BLM has previously provided to the Court as a basis to hold this appeal in abeyance."
The administration and opponents of the fracking rule want to table the legal debate over the regulation at least until the agency completes its new rulemaking process.
"Given the issuance of the proposed rule this week, it makes more sense than ever to place the case in abeyance temporarily and let the regulatory process play out," said Barron, the industry lawyer.
Rule supporters, meanwhile, maintain that a merits decision is necessary for BLM to move forward in the rulemaking process.
"Even though BLM said it's proposing to reconsider the rule, it's still very much a live dispute, and we think the court should not stay the appeal but go forward and resolve this question," Earthjustice's Freeman said. "Whatever route BLM decides to take with this reconsideration process ... it needs to know what it has the legal authority to do."
David Hayes, the deputy secretary under Presidents Obama and Clinton who has joined friend-of-the-court filings supporting the fracking rule, said this week's proposed rollback actually hurts the Trump administration's arguments to pause the case.
"It demonstrates that the fundamental question of authority, which the Department of Justice has admitted was incorrectly decided below, may never be decided, even though it's fundamental to the agency's mission, unless the 10th Circuit goes ahead and gets to the merits of the question," he said.Tribal issues
Fredericks Peebles & Morgan LLP attorney Jeffrey Rasmussen, representing the Ute Indian Tribe, might have the toughest job of the day.
Amid all the legal wrangling over fracking authority and procedural questions, his goal is to persuade the court to consider a separate, narrower issue: Can BLM regulate tribal lands the same way it regulates public lands? He has six minutes to make his case.
The Utes have been pushing the issue since before the fracking rule was finalized. They and other tribes say BLM overstepped by having the fracking rule apply uniformly to public and tribal lands.
Tribal lawyers have argued that BLM was created to manage public lands while the Bureau of Indian Affairs was charged with some oversight of tribal lands. BIA sometimes adopts BLM rules for itself and delegates some enforcement authority back to BLM.
For the fracking rule, tribal lawyers say BLM stretched that enforcement authority into a broader rulemaking authority that Congress never intended (Energywire, July 11, 2016).
In briefs this summer, the Utes supported the government's request to put the case on hold. But Rasmussen plans to push the tribal law issues during arguments today and hopes the panel of judges is willing to take them up even as the Trump administration dismantles the fracking rule.
"Even though we're not going to be complaining about the substance of the rule that they're proposing, our position is still that they don't have the authority to do it," he said. "It's not their job. It's some other agency's job to make rules. They at most can just apply them."
Arguments are scheduled for 9 a.m. MDT today in Denver before Judges Jerome Holmes, Harris Hartz and Mary Beck Briscoe.
Holmes and Hartz are George W. Bush appointees; Briscoe is a Clinton appointee. All three have mixed records in cases dealing with public lands and natural resources (Energywire, March 13).
https://www.eenews.net/energywire/2017/07/27/stories/1060057981
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Budget 'Constraints' Hamper Staff Hiring
Jul 27, 2017 | E&E Greenwire
By Kevin Bogardus and Corbin Hiar
The U.S. EPA inspector general said the Chemical Safety Board's tight budget over the years has hurt the agency's ability to hire and retain staff.
In a report released today, the EPA watchdog identified human resources as a new "management challenge" for CSB, which has been targeted for elimination under President Trump's proposed budget for fiscal 2018.
"Budget and resource constraints hamper the U.S. Chemical Safety and Hazard Investigation Board's (CSB) efforts to attract, hire, retain and train qualified staff," the report said.
The IG noted that the agency's budget has not increased in 15 years, and although CSB has asked for increased funding from Congress in the past, Congress has not coughed up additional money. In addition, the watchdog said the White House's budget plan proposed to zero out funding for CSB.
The IG cited the agency's fiscal 2018 budget justification in its report, noting that CSB's annual $11 million budget can lead to huge cost savings by preventing disasters.
"If the CSB's many safety lessons prevent at least one catastrophic incident, the money saved by avoiding damage to a facility and the surrounding community, the avoidance of legal settlements, and the saving of human lives far outweigh the agency's $11 million annual budget," said the document.
House appropriators have added $11 million back in funding for the agency (E&E News PM, July 12).
The inspector general recommended that leadership at CSB follow recommendations from the Office of Personnel Management to improve its management of human resources. Doing so would "help maximize the use of limited CSB funding," said the report.
CSB has adopted most of the recommendations the IG made in its scathing review of the agency.
"That's pretty remarkable," Chairwoman Vanessa Allen Sutherland said yesterday at a CSB board meeting. A year and a half ago, the agency had 34 recommendations from the IG to address.
"For us to only have one open recommendation, which is fairly close to closure, is a remarkable feat," she said.
https://www.eenews.net/greenwire/2017/07/27/stories/1060058016
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What's Cap and Trade? Most Residents Have No Idea — Survey
Jul 27, 2017 | E&E Climatewire
By Anne C. Mulkern
Most Californians knew nothing about cap and trade, even as state lawmakers this month engaged in a high-stakes fight over whether to keep the program alive.
That's according to a poll released yesterday by the Public Policy Institute of California (PPIC). The survey, conducted in mid-July, found 56 percent of Californians hadn't heard anything about the cap-and-trade program to cut greenhouse gas pollution. After listening to a short description of it, 56 percent of adults and 49 percent of likely voters said they favored it.
California's Legislature in a bipartisan vote extended the state's cap-and-trade system until 2030 while the opinion gathering was under way. Cap and trade limits greenhouse gas emissions and requires some businesses to cut emissions or submit environmental permits or "allowances" for their pollution. Gov. Jerry Brown (D) signed the extension of the program into law Tuesday.
The poll found that 72 percent of adults and 66 percent of likely voters favored the state's mandate to cut greenhouse gas emissions to 40 percent below 1990 levels by 2030. The survey said 84 percent of Democrats, 71 percent of independents and 42 percent of Republicans backed the law.
That's a new high point for support of cap and trade since PPIC started asking about it 2009. Support broke down to 60 percent of Democrats, 54 percent of independents and 32 percent of Republicans.
The survey told people cap and trade will add 15 cents per gallon of gasoline by 2021, citing an estimate from the state Legislative Analyst's Office. Higher gas prices has been a talking point of Republicans who oppose the policy, most recently during debate over extension of cap and trade last week.
Under the program, distributors of motor fuels must submit allowances for emissions tied to in-state gasoline and diesel sales, estimated at 17 billion gallons annually. Fuels represent about 40 percent of California's greenhouse gas emissions, the largest single sector. When gasoline refiners came under the law in 2015, it added about 10 to 12 cents per gasoline to pump prices. The impact was muted by the fact that at the time, oil prices were down globally.
PPIC's poll told people how cap-and-trade revenues are spent: on affordable housing near public transit, energy efficiency, high-speed rail and public transit. With that information, 60 percent of adults and 51 percent of likely voters said they supported cap and trade, the poll found.'Broad consensus' on climate efforts
Meanwhile, the poll found broadly that most Californians want state policies to limit climate change.
Sixty-six percent of Golden State residents said that they endorsed California making its own policies to limit climate change, separately from the federal government. Fifty-eight percent of those surveyed this month said it was very important that California act as a "world leader" in efforts to fight warming, according to the survey.
"There is broad consensus for the state's efforts to address climate change, and many support the cap-and-trade system," said Mark Baldassare, PPIC's president and CEO. "Most Democrats and independents and sizable percentages of Republicans are in favor."
PPIC spoke to 1,708 California adult residents by telephone from July 9 through July 18.
Californians also endorsed expanding the state's goals for making electricity from renewable sources. State law mandates that half of electricity come from those sources by 2030. The state Legislature is looking at increasing that to 100 percent by 2045. Asked about that, 76 percent of adults and 71 percent of likely voters said they supported it.
Residents were split on whether the policies hurt or help employment. Half believe California moves to combat global warming will spawn more jobs in the future, while 22 percent said they hurt employment and 19 percent said they have no effect on it.
Among likely voters, 49 percent said the rules will create more jobs. The portion of Californians believing the policies will help jobs was the highest since PPIC first asked the question in 2010, the poll findings said.
The poll's margin of error is 3.4 points for all adults and 4.3 points for the 1,095 likely voters.
https://www.eenews.net/climatewire/2017/07/27/stories/1060057996
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