Preview Newsletter
ACC AM 8/15/2017
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(ACC Mentioned) Greens Launch Legal War on EPA's TSCA Rules
Aug 15, 2017 | E&E News PM
By Amanda Reilly
Several green groups launched a legal campaign last week against the Trump administration over a pair of rules issued by U.S. EPA under the nation's new chemicals law. -
(ACC Mentioned) Trump’s EPA Is Caving To Chemical Industry, Environmental Groups Say
Aug 14, 2017 | SFGate
By Bob Egelko
The Trump administration has illegally rolled back rules for regulating toxic chemicals in food, drinking water and work sites, environmental groups said Monday as they asked a federal appeals court in San Francisco to intervene. -
Greens Sue EPA Over Toxic Chemical Rules
Aug 14, 2017 | The Hill - E2 Wire
By Devin Henry
Several environmental groups are challenging new chemical safety regulations issued by the Environmental Protection Agency (EPA). -
Green Groups Sue EPA Over TSCA Rules
Aug 14, 2017 | PoliticoPro - Whiteboard
By Annie Snider
Environmental groups have filed a suite of lawsuits challenging a pair of chemical safety rules finalized by the Trump administration last month. -
Enviros Challenge EPA's Chemical Risk Rules In 3 Circuits
Aug 14, 2017 | Law360
By Adam Lidgett
Several leading environmental groups have filed legal challenges to two new U.S. Environmental Protection Agency rules that they say weaken the revised Toxic Substances Control Act, including a framework for evaluating chemical risks and a method of prioritizing chemicals for review. -
Washington’s Monsanto PCB Case Remanded To State Court
Aug 15, 2017 | Inside EPA
A first-of-its-kind lawsuit over damages and cleanup costs brought by Washington state against Monsanto for its production of polychlorinated biphenyls (PCBs) has been moved from federal district court back to state court, dealing a blow to the manufacturer, which fought vigorously to keep the case in federal court. -
Energy Department Sued Over Grid Reliability Study Records
Aug 15, 2017 | BNA Daily Environment Report
By Rebecca Kern
The Sierra Club launched an early challenge to a highly anticipated grid reliability study, filing a lawsuit over the Energy Department's alleged failure to provide records of any communication between department officials and the power sector. -
Can Some Nebraska Farmers Kill the Keystone XL Pipeline?
Aug 15, 2017 | BNA Daily Environment Report
By Jillian Goodman
“When I first started this, it was about my house,” said Shannon Graves, who owns a hardware store in Polk, Neb.—population roughly 300—and lives less than 100 yards from the proposed route of the Keystone XL pipeline. “I just wanted to protect my home.” -
States Say EPA's Court Loss Proves Methane NSPS Delay Proposals Unlawful
Aug 14, 2017 | Inside EPA
By Curt Barry (cbarry@iwpnews.com) & Abby Smith(
A coalition of state attorneys general (AG) is charging EPA's proposed two-year delay of Obama-era methane limits for new oil and gas drilling operations is “blatantly unlawful” because it suffers from the same “fatal defect” as the agency's 90-day administrative stay of the standards recently vacated by a federal appellate court. -
EPA Critics Fight Agency's Request To Dismiss Ozone NAAQS Delay Suit
Aug 15, 2017 | Inside EPA
By Stuart Parker
Public health and environmental groups are fighting EPA's request for a federal appeals court to dismiss the groups' legal challenge to the agency's now-withdrawn plan to delay by one year designations for which areas are meeting the 2015 ozone standard, with the groups saying dismissal risks EPA putting the plan “back into place.” -
EPA Agrees To CSAPR Suit Delay But Opposes Status Reports
Aug 15, 2017 | Inside EPA
EPA is agreeing to a lengthy postponement of briefing in litigation over the agency's updated Cross-State Air Pollution Rule (CSAPR), which was issued during the Obama administration, but is opposing industry's bid to force it to report on its progress in responding to petitions for reconsideration, the agency says.
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Environment News
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(ACC Mentioned) Greens Launch Legal War on EPA's TSCA Rules
Aug 15, 2017 | E&E News PM
By Amanda Reilly
Several green groups launched a legal campaign last week against the Trump administration over a pair of rules issued by U.S. EPA under the nation's new chemicals law.
Environmentalists filed lawsuits Thursday and Friday in at least three federal appellate courts around the country seeking review of the rules, which EPA issued in June to guide risk evaluations and prioritization of chemical substances.
The new standards "leave the public at risk from chemicals commonly found in our homes, schools and workplaces," said Richard Denison, lead scientist at the Environmental Defense Fund, one of the plaintiffs.
"Our legal challenges seek to hold EPA to the law and ensure that the public is protected as Congress intended," Denison said.
Last year, Congress passed and President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a reform to the 1976 Toxic Substances Control Act.
It requires EPA to conduct risk assessments of chemicals without regard to cost and to protect vulnerable populations like children and pregnant women.
At issue in the litigation are EPA's framework rules for the new law. One of them established the process and criteria for identifying high-priority chemicals for risk evaluations, while the other established the system for determining if the chemicals present an unreasonable risk to health or the environment. The administration issued final versions in June.
"The activities we are announcing today demonstrate this administration's commitment to providing regulatory certainty to American businesses, while protecting human health and the environment," EPA Administrator Scott Pruitt said at the time (E&E News PM, June 22).
"The new process for evaluating existing chemicals outlined in these rules will increase public confidence in chemical safety without stifling innovation," he said.2nd and 4th circuits
In their lawsuits, the environmental groups accuse EPA under the new Trump administration of unlawfully weakening the rules.
EDF, which filed its lawsuit in the New York-based 2nd U.S. Circuit Court of Appeals, said EPA reversed the position taken during the Obama administration that it must consider all of the conditions for use of a given chemical substance.
The final rule stated that the agency may "exclude certain activities that EPA has determined to be conditions of use" from its risk analysis.
In a blog post, the Natural Resources Defense Council said it opposes the new rules because they give EPA "nearly unlimited discretion" to determine which uses of a chemical it considers to determine whether a substance is unsafe.
The resulting "incomplete analysis is likely to be wrong and could lead EPA to conclude that a chemical does not pose an unreasonable risk when it actually does," NRDC senior attorney Daniel Rosenberg and senior scientist Jennifer Sass wrote in the post.
NRDC, together with the Alliance of Nurses for Healthy Environments and Cape Fear River Watch, sued EPA over the rules in the Virginia-based 4th U.S. Circuit Court of Appeals.9th Circuit
Separately, Earthjustice filed a complaint Thursday in the San Francisco-based 9th U.S. Circuit Court of Appeals on behalf of the Environmental Working Group, WE ACT for Environmental Justice, the Learning Disabilities Association of America, the United Steelworkers, Alaska Community Action on Toxics, the Union of Concerned Scientists, the Environmental Health Strategy Center and the Sierra Club.
Labor unions joined the groups, as did Safer Chemicals, Healthy Families; the Vermont Public Interest Research Group; and the Asbestos Disease Awareness Organization.
The latter trio of groups is represented by Robert Sussman, a top EPA official in the Obama and Clinton administrations who has warned that the Trump administration may back down from last year's compromise reform law (Greenwire, July 20).
In statements announcing the lawsuits, groups blamed the president's choice of Nancy Beck to serve as the top political official in EPA's chemical safety office for the changes.
Prior to joining the administration, Beck was the senior director of regulatory science policy at the American Chemistry Council, a chemical industry trade group that generally opposes stricter regulations.
"The EPA's newly adopted rules — overseen by a former high-level chemical industry official with head-spinning conflicts of interest — will leave children, communities and workers vulnerable to dangerous chemicals," Earthjustice attorney Eve Gartner said in a statement.
"This lawsuit is about one thing: holding the Trump EPA to the letter of the law and ensuring it fulfills its mandate to protect the public," she said.
Beck has pushed back against greens' concerns about her appointment (Greenwire, July 17).
https://www.eenews.net/eenewspm/2017/08/14/stories/1060058755
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(ACC Mentioned) Trump’s EPA Is Caving To Chemical Industry, Environmental Groups Say
Aug 14, 2017 | SFGate
By Bob Egelko
The Trump administration has illegally rolled back rules for regulating toxic chemicals in food, drinking water and work sites, environmental groups said Monday as they asked a federal appeals court in San Francisco to intervene.
The rewritten regulations, “overseen by a former high-level chemical industry official with head-spinning conflicts of interest, will leave children, communities and workers vulnerable to dangerous chemicals,” Eve Gartner, a lawyer with the environmental legal group Earthjustice, said after filing the legal challenge last week in the Ninth U.S. Circuit Court of Appeals.
Other advocates have filed separate challenges to the rules in federal appeals courts in New York and Richmond, Va. The suits will be consolidated in a single nationwide case.
The rules implement changes that Congress passed last year to broaden the scope of the Toxic Substances Control Act, a 40-year-old law regulating uses of tens of thousands of chemicals sold in the United States. The new law increased the Environmental Protection Agency’s authority to review the safety of all chemicals in the marketplace, to restrict or ban chemicals found to pose serious threats, and to require new products to meet safety standards before being sold.
According to Earthjustice and the groups it represents, however, rules drafted by President Barack Obama’s EPA before he left office in January have been substantially weakened by the agency under President Trump.
Among the changes, their legal challenge says:
•The EPA can now decide which uses of a chemical it should study. The Obama draft rules would have required the agency to examine all “known, intended, reasonably foreseen” ways in which the chemical is used and all populations it could affect.
•The EPA will have broad authority to classify a chemical as a low priority for analysis and regulation. The draft rules would have limited that authority and would have classified all chemicals as high priority unless the agency expressly made a contrary finding.
•Chemical companies will get a big say in deciding which chemicals receive priority in undergoing federal scrutiny.
The new law allows manufacturers to ask the EPA to analyze specific chemicals. The Obama administration proposed requiring those manufacturers to provide all information about a chemical’s uses and the people who would be exposed, and required the agency to first consider substances that posed a high risk. The revised rules allow companies to request analyses of chemical uses “that are of interest to the manufacturer,” and allow the agency to consider them in the order they were received.
“The EPA’s new rules fail to protect consumers by exempting key sources of exposure to risky chemicals,” said Melanie Benesh, a lawyer with the Environmental Working Group, one of the plaintiffs in the Ninth Circuit case. Others include the Sierra Club and the Union of Concerned Scientists.
Benesh said the Trump administration agency, in overhauling the earlier draft of the rules, acceded to complaints from the major industry organization, the American Chemistry Council. Its former senior director for regulatory science policy, Nancy Beck, is now a high-ranking EPA administrator.
Beck has removed herself for a year from specific cases involving her former employer, but not from rule-making that affects the chemical industry, according to her statement obtained by Benesh’s organization.
At the chemistry council, Beck “was personally writing comments and letters to EPA about these rules, appeared at a public hearing and told EPA what she wanted to see,” said Gartner, the Earthjustice attorney. “Then, lo and behold, she’s the person with authority to finalize these rules.”
Asked for comment on the court cases, EPA spokeswoman Liz Bowman said the agency “is still reviewing the substance of the challenge, but is prepared to vigorously defend these important rules. We welcome working with all stakeholders in a constructive way.”
http://www.sfgate.com/nation/article/Trump-s-EPA-is-caving-in-to-chemical-industry-11818667.php
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Greens Sue EPA Over Toxic Chemical Rules
Aug 14, 2017 | The Hill - E2 Wire
By Devin Henry
Several environmental groups are challenging new chemical safety regulations issued by the Environmental Protection Agency (EPA).
The groups sued the EPA on Monday over rules, published in July, that determine which uses of chemicals the agency will assess before allowing the chemicals to be sold on the open market.
A chemical safety law passed last year requires the EPA to update several internal procedures related to the risk evaluation process for toxic chemicals.
But in their lawsuit Monday, the groups said the agency watered down the rules and weakened the chemical review process compared to the proposed regulations issued by the Obama administration.
“After Congress took bipartisan action to make desperately needed updates to our chemical safety laws, the Trump administration has turned back the clock, leaving families and workers at risk,” said Eve Gartner, an attorney at Earthjustice, which filed the lawsuit in federal court on Monday.
Gartner said the rules “will leave children, communities and workers vulnerable to dangerous chemicals. This lawsuit is about one thing: holding the Trump EPA to the letter of the law and ensuring it fulfills its mandate to protect the public.”
One of the rules in question sets criteria to determine the highest-priority chemicals for the EPA to evaluate. The other establishes which uses of a chemical regulators will consider for health and safety risks during the review process.
The groups argue the new rules provide “loopholes” for chemical manufacturers.
But the EPA said in June the rules “clearly [define] important scientific terms to ensure transparency and confidence in the risk evaluation process,” and ensure “that the agency’s resources are focused on those uses that may pose the greatest risk.”
http://thehill.com/policy/energy-environment/346535-greens-sue-epa-over-toxic-chemical-rules
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Green Groups Sue EPA Over TSCA Rules
Aug 14, 2017 | PoliticoPro - Whiteboard
By Annie Snider
Environmental groups have filed a suite of lawsuits challenging a pair of chemical safety rules finalized by the Trump administration last month.
The suits, filed Friday by Earthjustice in the 9th Circuit Court of Appeals in San Francisco, and Environmental Defense Fund in the 2nd Circuit Court of Appeals in New York, contest the two "framework rules" for implementing last year's bipartisan overhaul of the Toxic Substances Control Act. The rules govern how EPA will prioritize and conduct evaluations of tens of thousands of chemicals that are already on the market in the U.S.
In particular, the suits challenge the rules' approach to excluding certain uses of chemicals from EPA's evaluation of the substance's safety. Green groups argue that, under the law, EPA must analyze all of a substance's likely uses.
“Unfortunately, in straying from the letter and intent of that law, the EPA’s framework rules leave the public at risk from chemicals commonly found in our homes, schools and workplaces," Richard Denison, lead senior scientist for Environmental Defense Fund, said in a statement. "Our legal challenges seek to hold EPA to the law and ensure that the public is protected as Congress intended.”
EPA did not immediately respond to a request for comment on the lawsuits.
WHAT'S NEXT: The two appellate courts will decide whether to allow the lawsuits to proceed.
https://www.politicopro.com/energy/whiteboard
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Enviros Challenge EPA's Chemical Risk Rules In 3 Circuits
Aug 14, 2017 | Law360
By Adam Lidgett
Several leading environmental groups have filed legal challenges to two new U.S. Environmental Protection Agency rules that they say weaken the revised Toxic Substances Control Act, including a framework for evaluating chemical risks and a method of prioritizing chemicals for review.
Four petitions for review were launched against the EPA on Friday — two by the Environmental Defense Fund in the Second Circuit and two by a group of plaintiffs led by the Natural Resources Defense Counsel in the Fourth Circuit. Another two petitions were launched Thursday in the Ninth Circuit from various groups represented by Earthjustice.
While filed in different appellate jurisdictions, the suits all challenge the two EPA framework rules published earlier this summer, measures the environmental groups blasted in statements Monday.
“Just last year, Congress voted overwhelmingly to overhaul America’s chemical safety law to better protect the public from toxic chemicals,” EDF lead senior scientist Richard Denison said in a statement. “Unfortunately, in straying from the letter and intent of that law, the EPA’s framework rules leave the public at risk from chemicals commonly found in our homes, schools and workplaces. Our legal challenges seek to hold EPA to the law and ensure that the public is protected as Congress intended.”
The NRDC said in a statement that the rules give the EPA almost unlimited discretion to choose which uses of a chemical it considers when determining if the substance presents an unreasonable health risk. It said the EPA can exclude sources of exposure that affect the total risk a chemical can pose.
“Such an incomplete analysis is likely to be wrong and could lead EPA to conclude that a chemical does not pose an unreasonable risk when it actually does,” the NRDC said.
The coalition of plaintiffs led by Earthjustice said that the EPA dramatically weakened how it assesses the safety of a chemical, a move that the groups said catered to the chemical industry.
"This lawsuit is about one thing: holding the Trump EPA to the letter of the law and ensuring it fulfills its mandate to protect the public," Earthjustice attorney Eve Gartner said in a statement.
The package of new rules came on June 22, the one-year anniversary of former President Barack Obama's signing the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The act updated the TSCA and called for several big changes in how the EPA handles issues related to chemical safety.
The first step under the TSCA revisions for evaluating the safety of existing chemicals is prioritization, the EPA had said. In a final rule that sets up the prioritization process, the agency said it must decide the level or risk that a chemical poses and designate it as either high priority, which requires further evaluation, or low priority, meaning further study isn’t needed.
The second step in the new chemical assessment regime is risk evaluation, the EPA had said. The EPA set up a process for determining if a chemical presents “an unreasonable risk of injury to health or the environment.”
The federal government declined to comment.
The Environmental Defense Fund is represented by its own Robert P. Stockman.
The plaintiffs in the Fourth Circuit suit are represented by the Nancy S. Marks of the NRDC.
The plaintiffs in the Ninth Circuit suit are represented by Eve C. Gartner of Earthjustice, Randy Rabinowitz of the Occupational Safety & Health Law Project and Robert M. Sussman of Sussman & Associates.
Counsel information for the EPA was not immediately available on Monday.
The cases are Environmental Defense Fund v. United States Environmental Protection Agency, case numbers 17-2464 and 17-2403, in the U.S. Court of Appeals for the Second Circuit; Alliance of Nurses for Health Environments et al. v. United States Environmental Protection Agency, case numbers 17-1926 and 17-1927, in the U.S. Court of Appeals for the Fourth Circuit; and Safer Chemicals Health Families et al. v. United States Environmental Protection Agency, case numbers 17-72259 and 17-72260, in the U.S. Court of Appeals for the Ninth Circuit.https://www.law360.com/articles/953948/enviros-challenge-epa-s-chemical-risk-rules-in-3-circuits
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Washington’s Monsanto PCB Case Remanded To State Court
Aug 15, 2017 | Inside EPA
A first-of-its-kind lawsuit over damages and cleanup costs brought by Washington state against Monsanto for its production of polychlorinated biphenyls (PCBs) has been moved from federal district court back to state court, dealing a blow to the manufacturer, which fought vigorously to keep the case in federal court.
In a July 28 decision, the U.S. District Court for the Western District of Washington rejected attempts by Monsanto and two offshoot companies to allow federal court jurisdiction over the case.
In State of Washington v. Monsanto Company, et al., the state originally filed suit against the companies last December in King County Superior Court. But the defendants argued for moving the case to federal district court, saying the federal court has “three independent bases” for asserting jurisdiction in the case.
In the litigation, the state is pursuing compensation from the three companies for alleged injuries to its natural resources, claiming public nuisance, product liability violations, negligence, equitable indemnity and statutory trespass. With the suit, Washington became the first state to sue Monsanto -- the sole manufacturer of PCBs in the United States from 1935-1979 -- for damages and cleanup costs for potentially hundreds of sites contaminated with PCBs. The move to file tort litigation against a manufacturer of a product for environmental damages due to releases during and after the product’s use is novel but follows similar actions taken in recent years by cities along the West Coast.
The suit alleges that PCBs have contaminated a multitude of waterbodies in the state, and says Washington has expended significant funds to identify and lower sources of PCBs entering and contaminating public natural resources.
In the ruling, the district court rejected all three of Monsanto’s bases for which they say the federal court can assert jurisdiction.
https://insideepa.com/daily-feed/washington%E2%80%99s-monsanto-pcb-case-remanded-state-court
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Energy Department Sued Over Grid Reliability Study Records
Aug 15, 2017 | BNA Daily Environment Report
By Rebecca Kern
The Sierra Club launched an early challenge to a highly anticipated grid reliability study, filing a lawsuit over the Energy Department's alleged failure to provide records of any communication between department officials and the power sector.
The complaint, filed Aug. 14 in the U.S. District Court for the Northern District of California, Oakland Division, claims the Energy Department violated the Freedom of Information Act when it failed to respond to a May 1 FOIA request. The Sierra Club asked the Energy Department to provide records of any communications between department officials working on the report and outside groups representing the fossil fuel industry or grid reliability experts (Sierra Club v. Dep't of Energy, N.D. Cal., No. 3:17-cv-04663, 8/14/17).
The legal complaint is part of a strategy by the Sierra Club to compel the Energy Department to act after missing a mid-July and then an early August response time frame that the agency provided. The agency has now said it will respond by Aug. 25, Casey Roberts, a senior attorney in the Sierra Club's environmental law program, told Bloomberg BNA Aug. 14.
“We are hoping this will spur DOE to act quickly and comply with the Freedom of Information Act,” Roberts said. “We really want the documents by the time the study comes out.”
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P. Bloomberg BNA is an affiliate of Bloomberg L.P.
In April, Energy Secretary Rick Perry directed Brian McCormack, his chief of staff, to conduct a study that would “explore the critical issue central to protecting the long-term reliability of the electric grid.” Perry has questioned the impact of renewable subsidies and taxes on baseload resources and whether adding more renewables would affect the grid's reliability.
The Energy Department said it would make the study public once it is completed, which was expected in July. To date, Perry has not received the study to review and the department hasn't provided a date for release. Bloomberg News obtained a copy of a draft version in July written by department staff, which found wind and solar power don't pose a significant threat to the reliability of the U.S. power grid.
The Solar Energy Industries Association, American Wind Energy Association, Advanced Energy Economy and American Council on Renewable Energy, as well as other renewable groups, have issued numerous white papers and reports saying that they believe that the department's study is based on a false premise and which assert that renewables add flexibility, reduce costs and enhance reliability and resiliency of the electricity grid.
The Energy Department doesn't comment on pending litigation, Shaylyn Hynes, an Energy Department spokeswoman, told Bloomberg BNA Aug. 14. “DOE is committed to being responsive to all FOIA requests, and that is not different in this case,” she said.
Aiming for ‘Legal Backstop’
“The intent of filing this lawsuit was to show DOE that if it continues to delay in providing these documents, there's going to be a legal backstop,” Roberts said.
She said if the department provides the documents by late August, the Sierra Club is likely to drop the legal complaint. “I anticipate that they will continue to process our FOIA request in the meantime and that we can resolve this informally and quickly,” Roberts said.
If the department doesn't comply, the court could set a binding schedule for the Energy Department or review the adequacy of their disclosure, she added.
Kevin Goldberg, an attorney practicing FOIA law at Fletcher, Heald and Hildreth P.L.C., in Arlington, Va., said the lawsuit is likely to spur a quicker response from the agency.
“Sometimes a lawsuit is itself leverage to getting an answer,” he told Bloomberg BNA Aug. 14.
Goldberg said FOIA litigation has increased governmentwide in the past several years, with a trend being that the requester ends up winning by receiving the information sought.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118853324&vname=dennotallissues&fn=118853324&jd=118853324
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Can Some Nebraska Farmers Kill the Keystone XL Pipeline?
Aug 15, 2017 | BNA Daily Environment Report
By Jillian Goodman
“When I first started this, it was about my house,” said Shannon Graves, who owns a hardware store in Polk, Neb.—population roughly 300—and lives less than 100 yards from the proposed route of the Keystone XL pipeline. “I just wanted to protect my home.”
That was six years ago. Now, Graves said, “what was once just my home is now my world that I'm standing to protect.”
So last week she headed to Lincoln, the state capital, for hearings to determine whether the pipeline would serve Nebraskans’ public interest, the final regulatory hurdle for the long-contentious project.
After years of protest by environmentalists, the Obama administration in 2015 rejected TransCanada's proposal for the 1,179-mile pipeline, which would deliver crude oil from the Alberta tar sands to the Gulf of Mexico. In January, President Donald Trump resurrected the project with a presidential memo and executive order.
On a national level, the pipeline has been opposed largely by environmentalists, but in Nebraska, it's been fought mainly by farmers and ranchers who fear it could erode their soil and hurt their land values. Last week, a number of them—now educated in the intricacies of property easements, eminent domain, and bitumen—testified before the state's Public Service Commission, hoping to persuade its members to reject it.
TransCanada maintains the pipeline project would be an economic boon to the state. “The public benefit for Nebraskans is quite significant,” said spokesman Matthew John. “We're talking about 4,400 jobs, direct and indirect”—that is, jobs building the pipeline and jobs with other employers expected to benefit, such as local restaurants and stores—“and tens of millions of dollars in state property taxes that will be paid out throughout the life of the project. As well as the economic benefits that are generated from construction.”
But Nebraskan opponents argue that the vast majority of the jobs TransCanada has said the pipeline would create are construction-related and therefore short-term; those jobs, along with such indirect benefits as greater spending in local establishments, would evaporate once the project is completed. And tax revenue, they say, would evaporate in not much longer: The taxable value of the pipeline itself will depreciate over 15 years and payments gradually dwindle to zero.
The pipeline's current proposed route would cross the farm that Art Tanderup, a retired teacher and perhaps the landowners’ breakout star, owns with his wife, Helen. After the hearings finished, Tanderup said he felt he and the other landowners had gotten a chance to educate the PSC on life for Nebraska farmers. “You get big corporate people coming in—they don't know us, they don't know Nebraska,” he said.
Keystone XL is meant to be an extension of an existing Keystone pipeline that runs north-south through the eastern portion of the state. TransCanada has argued that its proposed route for the XL—which would cut diagonally across the state, crossing the Ogallala Aquifer, the historic Ponca Trail of Tears, and a small portion of the fragile Sandhills region—is the safest and most environmentally friendly path. Other than an earlier route, nixed years ago under pressure by the governor and the federal government, it's also the most direct route from the Canadian tar sands to the existing pipeline junction in Steele City, Neb..
Although the landowners would prefer that the PSC reject the pipeline entirely, their lawyers argued that the more responsible route would be one that parallels the existing pipeline, creating an energy corridor that would avoid disturbing additional land. On the first day of the proceedings, under questioning by the landowners’ lawyers, TransCanada's representatives acknowledged that collocating the two pipelines would mean crossing fewer miles of Nebraska farmland and that because they weren't locked into a route in South Dakota for the XL, they wouldn't need additional approval to do so.
After the hearings concluded Aug. 10 morning, a day and a half ahead of schedule, the landowners’ lawyers said they were pleased with what they'd presented. “Our pitch is, look at the net benefit,” attorney Brian Jorde said. “It can't be, ‘Is this just the not-so-bad pipeline?’ If it's not a net benefit to the state, we don't need it.”
TransCanada's lawyers, James Powers and Patrick Pepper of the firm McGrath North, left shortly after the hearing without answering questions and didn't respond to a previous interview request.
PSC spokeswoman Deb Collins said in an email that commissioners could not comment given the ongoing legal proceeding. The commission has until Nov. 13 to decide.
Regardless of its decision, opponents said they still expect to wind up in court over the pipeline, perhaps in eminent-domain battles over efforts to build it on their land.
“We are exhausted,” Graves said. She's been opposing the pipeline for six years now, others for even longer. But she added: “My daddy raised me to never give up. You just never give up. There's too much at stake to give up.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=118853328&vname=dennotallissues&fn=118853328&jd=118853328
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States Say EPA's Court Loss Proves Methane NSPS Delay Proposals Unlawful
Aug 14, 2017 | Inside EPA
By Curt Barry (cbarry@iwpnews.com) & Abby Smith(
A coalition of state attorneys general (AG) is charging EPA's proposed two-year delay of Obama-era methane limits for new oil and gas drilling operations is “blatantly unlawful” because it suffers from the same “fatal defect” as the agency's 90-day administrative stay of the standards recently vacated by a federal appellate court.
The coalition, led by California AG Xavier Becerra (D), also argues EPA cannot pursue other authorities to delay the rule, including a section of the Administrative Procedure Act (APA) floated by oil and gas industry groups and other opponents of the Obama-era standards.
And they charge the delay proposal is improper because it would achieve the result EPA Administrator Scott Pruitt sought in his challenge to the methane rule when he was Oklahoma AG.
The states' arguments come in Aug, 9 comments on EPA's June 16 proposal to delay key requirements of the Obama-era methane new source performance standards (NSPS) by two years. EPA also took comment on a separate proposal to delay the rule's provisions by three months.
Signing on along with Becerra are the AGs of Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia, as well as the state of Colorado and the city of Chicago.
EPA had intended the proposed three-month delay to be a gap-filler between the 90-day administrative stay of the methane NSPS requirements imposed by Pruitt on June 5 and the two-year delay once finalized. But in a blow to the Trump EPA, the U.S. Court of Appeals for the District of Columbia Circuit in a split July 3 ruling vacated the 90-day administrative stay.
In that case, Clean Air Council (CAC) v. Pruitt, the majority of the three-judge panel sided with arguments from environmentalists, joined by Becerra and several other state AGs, that EPA improperly used its authority under Clean Air Act section 307(d)(7)(B) to delay the rule.
The full D.C. Circuit in an 8-3 decision issued Aug. 10 rejected requests by oil and gas industry groups and state opponents of the methane NSPS, after the majority of the court in a July 31 order re-issued the court's mandate requiring EPA to implement the regulation.
The states in their comments tie the pending EPA proposals to further delay the methane NSPS to the CAC case, arguing that the agency “lacks statutory authority” needed to implement the proposed delays. “[I]ts effort amounts to an impermissible end-run around well-established administrative law requirements governing the process for repeal of federal rules,” their comments read.
And citing the CAC ruling, they argue to the extent EPA claims a need for additional time to reconsider provisions of the rule, “that rationale is unavailing” because the D.C. Circuit “held EPA's initial grant of a separate three-month administrative stay in furtherance of its reconsideration of those same provisions was arbitrary and capricious, since the underlying reconsideration grant failed to satisfy the requirements of the Act.”
'Fatal Defect'
That EPA is taking notice and comment on these proposals “does not cure” the “fatal defect” that the agency lacks the authority to impose the stays, the comments add. The states note the delay proposals are “arbitrary and capricious because EPA has failed to either justify its reversal of its prior position regarding the importance of reducing methane emissions from the oil and natural gas sector or reconcile the stay with its own rulemaking record.”
The states also argue that EPA in its June 16 proposals do not cite specific statutory authority for the rule delays, but rather simply “references Clean Air Act section 307(d)(7)(B),” which allows EPA to stay regulations when linked to a “mandatory” reconsideration proceeding for a period no longer than three months.
But the states say the section “only provides . . . for a limited three-month administrative stay of the rule during reconsideration.” Thus, the methane NSPS proposals “run afoul of” that limitation.
The comments add, “Indeed, in a separate notice of proposed rulemaking delaying another Clean Air Act rule, EPA recently acknowledged that the term of an administrative stay granted pursuant to Section 307(d)(7)(B) is limited to three months” referencing an EPA action on its risk management programs' accidental release prevention requirements.
In their comments, the states also argue EPA's options are limited should it attempt to switch rationales for the proposed delays. In particular, they reject one potential option floated in recent comments from the major oil and gas lobby the American Petroleum Institute (API) for EPA to use authority under APA section 705 to stay the rules.
That statute allows for federal agencies to postpone rules pending judicial review if “justice requires.” The section has typically been interpreted by EPA and other agencies to only apply to rules for which the effective date has not yet passed -- a qualification that would make the methane NSPS ineligible as it took effect in June 2016.
API in its July 27 comments, however, argues EPA could revise its past interpretation of the APA provision. “Relief under APA [section] 705 is available regardless of whether the effective date for a compliance obligation has passed,” API writes, suggesting that the statute's use of “postponing” the effective date of a regulation pending judicial review does not “necessarily” have to be “forward looking” as EPA has interpreted in the past.
The states' comments, however, rejects this notion, arguing EPA lacks authority to stay the methane NSPS under APA section 705. They cite a 1996 D.C. Circuit case, Safety-Kleen Corp. v. EPA, noting the court has found APA section 705 “only 'permits an agency to postpone the effective date of a not yet effective rule, pending judicial review.'” Further, EPA has advanced such an interpretation in the past, and “any attempt by EPA to rely on section 705 now” for the proposed methane rule stays “directly contravenes” that prior interpretation.
Beyond the “effective date” debate, the states argue EPA could not use APA section 705 to delay the methane NSPS because it has not met the four-part test needed to win a judicial stay -- a requirement set up by a 2012 D.C. district court ruling. In addition, the states argue EPA “fails to draw a rational connection” between the stay proposals and “any pending judicial review of the” methane NSPS -- a feat they say “will prove difficult” given EPA successfully won abeyance in the case in May.
“Moreover, EPA's Proposed Stay Rules are tethered solely to objections raised in reconsideration petitions and make no mention of pending litigation. Section 705 does not authorize an agency to postpone the effective date of a rule pending reconsideration,” the states write.
'Arbitrary And Capricious'
The states' comments also charge the EPA stay proposals are “arbitrary and capricious because EPA fails either to justify reversal of its position as set forth in the 2016 Rule, or reconcile its decision to stay the 2016 Rule with the determination in its rulemaking record that the 2016 Rule is necessary to address harm to public health and welfare.”
Because “the evidence shows that Administrator Pruitt has prejudged the Proposed Stay Rules, his involvement as decision maker is a violation of due process.” The states argue that because Pruitt, as Oklahoma's AG, challenged the legality of the methane NSPS, his involvement “renders the Proposed Stay Rule arbitrary and capricious, an abuse of discretion, and unconstitutional.”
Finally, EPA’s failure to require Pruitt to undergo an “ethics authorization process” before participating in the rulemaking is an action “without observance of procedure of law rendering the Stay Rules subject to reversal under section 307(d)(9)(D) of the Clean Air Act,” the states contend.
More broadly, the states in their comments note state-level policies to reduce emissions of methane, a potent greenhouse gas, including a March 2017 regulation adopted by California's Air Resources Board requiring quarterly monitoring and repair of methane leaks from a range of natural gas facilities.
But the states note, “Even with these robust state efforts, EPA action is needed -- and, indeed, required -- under the Clean Air Act, to ensure baseline national standards of performance in the oil and natural gas sector, especially in states with no such backstop programs.” And they warn of a “significant reversal in federal efforts to address methane emissions” under Pruitt.
Many of the state AGs listed on the comments filed a June 29 notice of intent to sue EPA for unreasonable delay in issuing methane emissions limits for existing oil and gas operations, triggering a 180-day clock for filing litigation over the methane controls. The states argued EPA has failed to perform its “nondiscretionary duty” to issue the emissions limits for the existing oil and gas sector.
https://insideepa.com/daily-news/states-say-epas-court-loss-proves-methane-nsps-delay-proposals-unlawful
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EPA Critics Fight Agency's Request To Dismiss Ozone NAAQS Delay Suit
Aug 15, 2017 | Inside EPA
By Stuart Parker
Public health and environmental groups are fighting EPA's request for a federal appeals court to dismiss the groups' legal challenge to the agency's now-withdrawn plan to delay by one year designations for which areas are meeting the 2015 ozone standard, with the groups saying dismissal risks EPA putting the plan “back into place.”
EPA's critics in the suit say the quick withdrawal of the delay shows an agency in “chaos,” and want to preserve the suit to prevent EPA reattempting the delay. They are looking for a court ruling that would say the designations delay is unlawful, outright barring any future push to delay the designations.
EPA argues that the case still pending in the U.S. Court of Appeals for the District of Columbia Circuit is now moot, as the agency has reversed its initial decision to delay from Oct. 1 to Oct. 1, 2018, designations of areas as attaining or being in nonattainment with the 2015 ozone national ambient air quality standard (NAAQS) of 70 parts per billion (ppb). The designations trigger a Clean Air Act clock for states to craft ozone-reduction plans.
EPA Administrator Scott Pruitt said the one-year delay was vital to allow more time to assess the data underpinning the Obama administration's decision to tighten the NAAQS from the prior 2008 limit of 75 ppb, but weeks later said the review could likely take place in time for the air law's Oct. 1 deadline for the designations.
Public health and environmental groups sued the agency over the delay saying the agency's claim that a blanket delay on all designations while it considers whether to alter the NAAQS itself was unlawful, and they are fighting the agency's request for the D.C. Circuit to dismiss the suit over the now-withdrawn delay plan.
In an Aug. 14 filing in American Lung Association, et al. v. EPA, et al., the groups counter EPA's Aug. 3 motion to dismiss the case, arguing that EPA's implementation delay could “spring back into place.”
In their filing, the groups say EPA's “withdrawal notice” published in the Federal Register Aug. 10 does not provide assurance that the agency will proceed with area designations in accordance with air law requirements.
The groups say, “whether this case actually is moot depends on whether EPA has carried its heavy burden of demonstrating that the voluntary cessation exception to mootness does not apply: that the challenged action cannot be reasonably expected to recur, and that its effects have been 'completely and irrevocably eradicated.'”
However, “EPA has not carried its burden,” because the withdrawal notice “neither avers EPA will avoid future action (such as withdrawing the Withdrawal Notice) to delay designations again on the same or similar grounds, nor does it commit to issuing any designations anywhere at any time.”
If the court does not wish to rule on EPA's motion to dismiss at this time, the groups ask that the court hold the case in abeyance until Nov. 8, in order to allow the Oct. 1 deadline to pass.
Also, if “the Withdrawal Notice is itself withdrawn or challenged, the parties in these cases would thus have an opportunity to consult on the proper course of action in these cases,” the groups say.
The groups note that if the court dismisses the case, they would have no guarantee that a legal challenge to the withdrawal notice could not succeed, effectively restoring the designations delay. If the court does dismiss the present case, it should also vacate the designations delay, they argue.
https://insideepa.com/daily-news/epa-critics-fight-agencys-request-dismiss-ozone-naaqs-delay-suit
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EPA Agrees To CSAPR Suit Delay But Opposes Status Reports
Aug 15, 2017 | Inside EPA
EPA is agreeing to a lengthy postponement of briefing in litigation over the agency's updated Cross-State Air Pollution Rule (CSAPR), which was issued during the Obama administration, but is opposing industry's bid to force it to report on its progress in responding to petitions for reconsideration, the agency says.
The U.S. Court of Appeals for the District of Columbia Circuit has already suspended briefing in the case, State of Wisconsin v. EPA, pending issuance of a new schedule, after electric utility industry petitioners requested a four-month extension so EPA can respond to their petitions for administrative reconsideration of the rule.
In an Aug. 11 filing with the U.S. Court of Appeals for the District of Columbia Circuit, the Department of Justice (DOJ) on behalf of EPA says it does not oppose a suspension of briefing in the consolidated suit challenging EPA's 2016 update to CSAPR, an interstate power plant emissions trading rule. But “EPA opposes Movants’ request that EPA be required to provide a status report regarding administrative matters not presently before the Court.”
EPA's CSAPR update modifies the rule to help states meet the agency's 2008 national ambient air quality standard (NAAQS) for ozone, set at 75 parts per billion (ppb), by tightening state emissions caps for ozone-forming nitrogen oxides. The original 2011 rule was intended to meet the less-stringent 1997 NAAQS expressed as 84 ppb. Industry groups and states opposed to the updated CSAPR say the tighter emissions caps are unreasonably tough.
DOJ in its filing says if petitioners' briefs are delayed until Dec. 19 as requested by industry groups, EPA then requests three weeks of additional time to prepare its response to compensate for staff absences over the winter holiday season. This would push EPA's response brief until April 10.
However, the agency opposes the utilities' effort to force it to file status reports with the court on its response to several outstanding petitions for administrative reconsideration of the CSAPR update.
DOJ says, “the timing of EPA’s administrative consideration of the pending petitions is not a matter before this Court: any claim that EPA has unreasonably delayed action on the pending petitions may only be raised in an appropriate district court and only after appropriate notice has been provided to EPA.” The notice periods is 180 days.
“No party has even alleged that EPA has unreasonably delayed acting on the pending petitions, nor could they as the petitions have only been pending for a matter of months,” DOJ says.
“Movants’ request that EPA be ordered to report to the Court its progress towards completing administrative activities impermissibly seeks to subject those activities to judicial oversight,” it adds.
https://insideepa.com/daily-feed/epa-agrees-csapr-suit-delay-opposes-status-reports
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