Preview Newsletter
AM ACC 8/24/2017
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(ACC Mentioned) First Regional EPA Chief's Selection Highlights Agency's Hiring Challenges
Aug 23, 2017 | Inside EPA
EPA's selection of former Alabama environment chief Trey Glenn as EPA's top political official in Region 4 overseeing several Southern states highlights agency's the slow pace of filling key positions as well as controversies associated with several existing nominees. -
European Regulators Probe Bayer-Monsanto Deal
Aug 23, 2017 | Chemical & Engineering News
By Alexander H. Tullo
The European Commission is opening an in-depth investigation into Bayer’s planned $66 billion purchase of rival Monsanto. Regulators are concerned about the market heft the two firms would have if they combine businesses in agricultural chemicals, seeds, and crop traits. -
New Industry Coalition Launched on TSCA New Chemicals Review Issues
Aug 23, 2017 | Inside EPA
By Maria Hegstad
Bergeson & Campbell, a law firm that specializes in chemical industry issues, is creating a coalition of companies to craft uniform comments to EPA on industry concerns that have arisen with the agency’s process for reviewing “new” chemicals ... -
EPA Watchdog to Assess TSCA Chemical Data Reporting Rule
Aug 24, 2017 | Chemical Watch
The US EPA's in-house watchdog is planning to assess the TSCA Chemical Data Reporting (CDR) rule. -
Four Milestones Since the Birth of a Significantly Revised TSCA
Aug 23, 2017 | National Law Review
By Jane E. Montgomery and Kaitlin C. Straker
Following the one year anniversary of significant amendments to the Toxic Substance Control Act (TSCA), there has been a flurry of activity related to the Act—from new rules issued by the Environmental Protection Agency (EPA) to lawsuits filed across the country. -
EPA Struggling with Perchlorate Review, Raising Doubts on Court Deadline
Aug 23, 2017 | Inside EPA
By Maria Hegstad
EPA is struggling to complete a peer review of the science and modeling underlying its efforts to assess and regulate the ubiquitous rocket fuel ingredient perchlorate in drinking water, raising doubts that the agency will be able to meet its court-ordered October deadline... -
Echa Round-Up
Aug 24, 2017 | Chemical Watch
The Netherlands has notified Echa of its intention to prepare a restriction proposal on eight carcinogenic polycyclic aromatic hydrocarbons (PAHs) in plastic and rubber granulates used as infill material in synthetic turf pitches. -
Antiseptic Chemical Could Be Declared Toxic by Canada
Aug 24, 2017 | BNA Daily Environment Report
By Peter Menyasz
Concern for aquatic species prompted Canada to propose declaring as “toxic” chlorhexidine and its salts, which are commonly used as an antiseptic and preservative in drugs, disinfectants, creams, and cosmetics. -
DOE Argues Lawsuits over Export Terminals Should Be Rejected
Aug 24, 2017 | E&E News PM
By Amanda Reilly
The Department of Energy is aiming to quash a suite of lawsuits challenging liquefied natural gas terminals after a federal court last week upheld its approval of a Texas project. -
DOE Grid Study: Gas Drives Power Shift, But Markets Need Reform
Aug 24, 2017 | PoliticoPro
By Darius Dixon
The Trump administration’s dive into the nation's power system delivered a conclusion Wednesday that the energy world reached long ago: Cheap natural gas is changing the face of the U.S. electric grid. -
RGGI States Agree to Cut Utility Emissions by Another 30%
Aug 24, 2017 | E&E News PM
By Arianna Skibell
The governors of nine Northeastern and Mid-Atlantic states have committed to cut carbon emissions from power plants by an additional 30 percent through an updated cap-and-trade program. -
While Keeping CPP Litigation on Ice, Judges Warn EPA About Delaying GHG Regulation
Aug 24, 2017 | Platts
By Annalee Armstrong and Jasmin Melvin
A federal appeals court has extended by 60 days the abeyance period for the Clean Power Plan litigation pending the Environmental Protection Agency’s review of that regulation. -
Ruling Muddies the Waters in Power Plant Pollution Case
Aug 24, 2017 | BNA Daily Environment Report
By David Schultz
The future of a lawsuit over EPA limits on power plant pollution is uncertain after an appeals court ruled that only parts of the suit could move forward, but did not specify which parts. -
Cuomo’s Natural Gas Blockade
Aug 23, 2017 | Wall Street Journal
By Editorial Board
The U.S. shale boom has lowered energy prices and created hundreds of thousands of jobs across the country. But those living in upstate New York and New England have been left in the cold by New York Gov. Andrew Cuomo, whose shale gas blockade... -
Oil and Gas Pipeline Plan Falls Short, Colorado Lawmakers Say
Aug 24, 2017 | BNA Daily Environment Report
By Tripp Baltz
Colorado Democratic state lawmakers say Gov. John Hickenlooper's (D) plan to address underground oil and gas flow lines won't do enough to protect public health and safety, while industry officials maintain they will work with the governor on the proposed changes. -
Practitioner Insights: Preempting NYC's Hazardous Transport Permits
Aug 24, 2017 | BNA Daily Environment Report
By Greg Dillard
The federal Pipeline and Hazardous Materials Safety Administration, which regulates the interstate transport of hazardous materials, recently preempted New York City's local permit and inspection requirements for vehicles transporting hazardous materials within the city. -
Ewire: Environmentalists Take Their Defense of EPA's Budget to Key States
Aug 24, 2017 | Inside EPA
With lawmakers facing a Sept. 30 deadline to fund EPA and other agencies or risk a government shutdown, environmentalists and other agency supporters are using the congressional recess to make the case that Congress should reject the Trump administration... -
Scott Pruitt's Anti-Environmental Agenda Hits a Snag: The Courts
Aug 23, 2017 | Environmental Defense Fund
By Fred Krupp
It looks like Scott Pruitt – one of the Trump administration’s most adept operators – may have finally met his match: the law. -
Exxon Duped Public Over Climate Concerns, Harvard Research Says
Aug 24, 2017 | BNA Daily Environment Report
By Jessica Shankleman
Exxon Mobil Corp. spent the last 40 years undermining public concern over climate change, even as its own scientists determined man-made global warming was real and a serious threat, according to Harvard University researchers writing in a peer-reviewed journal.
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(ACC Mentioned) First Regional EPA Chief's Selection Highlights Agency's Hiring Challenges
Aug 23, 2017 | Inside EPA
EPA's selection of former Alabama environment chief Trey Glenn as EPA's top political official in Region 4 overseeing several Southern states highlights agency's the slow pace of filling key positions as well as controversies associated with several existing nominees.
Glenn's appointment, announced Aug. 21 by EPA Administrator Scott Pruitt, is the first for any of the regional administrator slots across the agency's 10 regions -- a slow pace since President Donald Trump's Jan. 20 inauguration. Similarly, top positions within EPA headquarters either remain without a nominee or the nominees are yet to win Senate confirmation.
Glenn's selection to head Region 4 (regional administrators don't require Senate confirmation) could also call fresh attention to claims of ethics violations since his time as a state regulator was dogged by accusations of improper relationships with regulated industry. Pruitt and other nominees have sparked similar controversies.
As Region 4 chief, Glenn will oversee the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee. The other nine regional offices are still headed by acting career officials who have been at the agency for years.
Glenn headed the Alabama Department of Environmental Management (ADEM) from 2005-2009. He left the job after a grand jury declined to indict him over claims that influenced his own hiring when, as state water resources chief, he approved invoices paid to a company that employed the chair of the committee in charge of hiring the ADEM director:
Pruitt Taps Controversial Former Alabama Official To Lead Region 4
EPA Administrator Scott Pruitt has named former Alabama Department of Environmental Management (ADEM) chief Trey Glenn to head the agency's Region 4, marking Pruitt's first appointment of a regional administrator. But Glenn's ADEM tenure was marked by charges of inadequate regulatory oversight and an investigation of potential criminal ethics violations, which could highlight criticisms of Pruitt's alleged ethical violations and provide fodder for critics.Beyond the hiring issue that the grand jury investigated, local media reports note that Glenn's critics in Alabama faulted him for accepting gifts such as baseball tickets from businesses that ADEM regulated. That history will likely become fodder for environmentalists, Democrats and other critics who have already charged that Pruitt's EPA is too close with industry. A Birmingham News column reacting to Glenn's appointment says his past renders the selection “downright Orwellian."
Pruitt and other nominees have also drawn fire, with Pruitt already facing an investigation by the Oklahoma Bar Association for allegedly lying in his confirmation hearing about his use of private email while he served as the state's attorney general. And he also drew criticism for using little-known Safe Drinking Water Act (SDWA) authority to speed recruitment of senior officials through expedited “administratively determined” (AD) hires -- who are exempted from some ethics requirements:
Pruitt Faces Questions Over Use Of Special SDWA Power To Speed Hiring
EPA Administrator Scott Pruitt has been seeking to speed his hiring of senior personnel using a special statutory provision that allows a limited number of “administratively determined” (AD) hires under expedited procedures, but the effort is facing intensifying concern because the authority appears to allow these hires to be temporarily exempt from the Trump administration's ethics requirements.The use of AD hiring could be a way for Pruitt to get around the slow pace of White House approval for top EPA positions, which has not been limited to the regional administrator level.
Seven months into the Trump administration, the White House has formally nominated just two assistant administrators to head offices at the agency: current Senate Environment & Public Works Committee GOP counsel Susan Bodine to head EPA's enforcement office, and former agency risk assessor Michael Dourson to head the Office of Chemical Safety and Pollution Prevention (OCSPP).
Members of the administration have floated names for other significant EPA positions, such as attorney Andrew Wheeler for deputy administrator, former acting George W. Bush EPA air chief Bill Wehrum as head of the air office, former Florida environment department general counsel Matt Leopold as general counsel and former Wisconsin Department of Justice environmental protection unit chief David Ross as water chief. But none of those named in the press have been formally nominated by Trump, which would clear the path for Senate hearings and votes on them.
The lengthy delays potentially reflect ongoing internal debate on who to pick for those jobs. In particular, leaks from the White House have gone back and forth for months on whether Wheeler or former George W. Bush air chief Jeff Holmstead will be deputy administrator.
Even if Trump acts quickly to make a round of nominations, it could be some time before the Senate has room in its schedule to consider them. The upper chamber has not yet found time to vote on confirming Bodine, even though she was approved by EPW on July 12:
Bodine Backs Centralized OECA, Squelching Talk Of New Program Function
EPA enforcement chief nominee Susan Bodine is dismissing earlier discussion that the Trump administration is planning to close down the agency's Office of Enforcement and Compliance Assurance (OECA) and disperse its functions to program offices, embracing its mission as a centralized entity in EPA headquarters, according to her written response to senators' questions.Complicating matters further, when the August recess ends, legislators will have to move quickly on a fiscal year 2018 budget and raising the debt ceiling. And GOP leadership has signaled that they hope to turn next to tax reform -- a daunting subject that could block legislators from working on other projects in much the same way that healthcare dominated the early summer.
The slow pace of nominations at EPA has drawn significant concern from supporters of the administration and Pruitt's deregulatory agenda.
Even though Pruitt himself has been focused on rolling back Obama-era rules that industry and the GOP oppose, sources have warned that without qualified officials heading the EPA program offices, it will be difficult to complete final rulemakings to revise or withdraw those policies in the next four years, after which a new administration might be able to reverse course.
Thus, political appointees below the assistant administrator level are increasingly taking the reins at EPA's program offices in lieu of Senate-confirmed officials. Most prominently, Nancy Beck, a former top official at the American Chemistry Council, is serving as principal deputy assistant administrator in OCSPP, the current top political position.
But Beck is one of the officials brought into the agency through expedited SDWA authority, which has led to outcry from critics over whether she is properly recusing herself from some activities related to her prior position in the chemical industry:
Deputy EPA Toxics Chief Details Limited Recusal
Nancy Beck, EPA's deputy toxics chief, has agreed to a relatively limited set of recusals to limit any conflict of interest with her prior work for the American Chemistry Council (ACC), though the actions appear to fall short of the broad recusals environmentalists had sought as the agency implements the revised Toxic Substances Control Act (TSCA).Trump's nomination of Dourson has also prompted attacks from environmentalists who fear that he and Beck will weaken implementation of the reformed TSCA to favor the chemical sector -- and environmentalists have already filed suit in several federal appellate courts over two of the early TSCA rules finalized by the Trump EPA:
Trump's Pick For EPA Toxics Chief Draws Criticism Over Industry Ties
President Donald Trump's nomination of Michael Dourson, a risk assessor who left the agency in the 1990s, to be the agency's next toxics chief is drawing criticism from environmentalists, who charge he is the latest nominee for the office with close industry connections that raise doubts about implementation of the new Toxic Substances Control Act (TSCA).Glenn's appointment at Region 4 could be the start of a new wave of appointments that fill key openings in top EPA positions, or another marker of the challenges Pruitt faces in remaking the agency to fit his agenda. Either way, look for Inside EPA's exclusive coverage of the agency's new direction under Trump and Pruitt -- and whether they can succeed in executing their aggressive goals.
https://insideepa.com/insider/insider-august-23-2017
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European Regulators Probe Bayer-Monsanto Deal
Aug 23, 2017 | Chemical & Engineering News
By Alexander H. Tullo
The European Commission is opening an in-depth investigation into Bayer’s planned $66 billion purchase of rival Monsanto. Regulators are concerned about the market heft the two firms would have if they combine businesses in agricultural chemicals, seeds, and crop traits.
Together, Bayer and Monsanto would be the world’s largest supplier of crop protection chemicals. Their nearly $25 billion in annual sales would be ahead of Dow Chemical and DuPont, which are set to complete their own merger at the end of this month.
European commissioner for competition Margrethe Vestager worries that the combined Bayer and Monsanto may be too large. “We need to ensure effective competition so that farmers can have access to innovative products, better quality, and also purchase products at competitive prices,” she says.
Bayer and Monsanto submitted a proposal last month for addressing the EC’s preliminary issues with the merger, but their remedies were apparently insufficient. Bayer says it will work constructively with the EC, which has set a deadline of Jan. 8, 2018, to complete its review.
As part of its further investigation, the EC will delve into the two companies’ herbicide units. Monsanto makes glyphosate, used with its Roundup Ready seeds, while Bayer offers glufosinate, used with its special LibertyLink seed. The EC points out that glufosinate is one of the few available alternatives to glyphosate. It also notes that the two companies are among the few researching new active ingredients to combat weed resistance to herbicides.
These concerns do not come out of the blue. In May, Bayer received conditional approval for the merger from South African authorities, provided it divest LibertyLink-related assets.
The EC is also concerned about the overlap the companies would have in seeds. For example, it points out that Monsanto is the European market leader in rape seed and Bayer is the largest supplier globally.
The EC is looking at the merger in the context of a wave of consolidation in agricultural chemicals. In March, the EC cleared the Dow-DuPont deal provided that DuPont sell a portion of its crop protection business. In April, the EC approved ChemChina purchase of Syngenta on the condition that it divest a number of generic pesticides.
http://cen.acs.org/articles/95/i34/European-regulators-probe-Bayer-Monsanto.html
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New Industry Coalition Launched on TSCA New Chemicals Review Issues
Aug 23, 2017 | Inside EPA
By Maria Hegstad
Bergeson & Campbell, a law firm that specializes in chemical industry issues, is creating a coalition of companies to craft uniform comments to EPA on industry concerns that have arisen with the agency’s process for reviewing “new” chemicals before they enter the market under the revised Toxic Substances Control Act (TSCA).
The firm is calling on companies to join a coalition of businesses interested in EPA’s new chemicals review process, with a particular emphasis on EPA plans to seek comment this fall on guidance for performing reviews in light of changes following enactment of the TSCA reform law in summer 2016.
“A key reason we believe a coalition needs to be organized now is to prepare meaningful comments and offer constructive, helpful, and informed improvements to the new chemicals review process,” says an Aug. 14 memo from Managing Partner Lynn Bergeson on the firm’s website, pointing to EPA’s statement on its new chemicals review process.
The firm is planning a Sept. 11 planning call with prospective members.
Creation of the coalition comes shortly after EPA on Aug. 7 announced that it has eliminated the backlog of new chemicals awaiting review that had troubled industry since enactment of the TSCA reform law.
The agency’s announcement capped months of concern from industry officials whose chemicals were delayed from debuting as they stalled in EPA’s pre-manufacture notice (PMN) approval process, leading to a backlog of chemicals awaiting approval. EPA officials indicated the backlog occurred with the immediate implementation of new requirements in the TSCA reform law that EPA make a determination on the risk status of each chemical presented in a PMN.
Bergeson & Campbell notes that this change has resulted in a drop from approximately 90 percent PMNs entering commerce without restrictions under the old TSCA to somewhere “in the 20 percent range” of PMNs since the passage of the reform law.
At its peak, the backlog amounted to about 600 chemicals pending review, though the reduced that to 382 cases in early August -- including 74 cases where companies that submitted the substances for review are developing necessary information or conducting required testing. Subtracting those 74 pending cases from the 382 total brings it down to the “normal active workload” of roughly 300 new chemicals under review at any one time, EPA says.
The agency also announced plans to put efforts in place to prevent future backlogs.
According to EPA’s statement, that includes plans to release “for public comment and stakeholder engagement, draft documents that will provide the public with more certainty and clarity regarding how EPA makes new chemical determinations and what external information will help facilitate these determinations.”
The statement adds that the agency “will facilitate a public dialogue on the Agency’s goal of continued improvement in the new chemicals review program.”
Bergeson’s statement commends EPA’s commitment to release these documents, but adds that “[i]t will be nearly impossible to prepare comprehensive comments and address the many issues that we anticipate addressing once EPA distributes the draft documents, and solicits comment, presumably within a relatively short time period.”
'Shrouded In Secrecy'
The statement also acknowledges that TSCA section 5, which requires EPA to review new chemicals -- those not already on the market when the original TSCA was enacted in 1976, as well as those since added to the TSCA inventory -- has historically been “uniquely shrouded in secrecy; working around [confidential business information (CBI)] is challenging.”
As a result, it says, “a coalition of submitters is far better situated to discuss critical issues and common themes without discussing specific details. These discussions will provide greater insight into EPA’s approaches and offer an opportunity to engage with EPA to find workable solutions that meet TSCA’s statutory obligations without causing avoidable commercial disruption or imposing unnecessary testing burdens.”
“What is less clear is how EPA is making these determinations. The ‘how’ part is undoubtedly the sum of a complex calculus employing new terms and concepts,” the firm’s memo states. “The nature of the New Chemicals Program is that there is little, if any, line-of-sight on decisions on individual submissions. EPA makes its determinations based on the factual information set forth in a PMN and additional modeling and assumptions. Given the prevalence of [CBI] in new chemical submissions, there is no way, however, for submitters to determine whether EPA’s determinations are consistent.”
The memo points out situations with individual PMNs that have raised industry concern over the past year, such as “over-regulation of inhalation hazards.”
The memo explains that EPA’s PMN program “has identified four categories of inhalation hazards for which it had ‘insufficient information’ to make a reasoned evaluation of the hazards ... Based on our experience, EPA has imposed up-front testing on any substance that fits into one of these categories, essentially arguing that no amount of inhalation protection would be sufficient to protect against the ‘unknown’ hazard associated with these classes of substances. Given that there are hundreds, if not thousands, of substances in commerce included in these categories, the notion that a new substance that is very similar to an existing substance cannot safely enter commerce absent up-front, sub-chronic inhalation testing is difficult to justify. EPA has refined the categories somewhat since its initial determinations, but EPA’s determinations remain exceedingly precautionary.”
The coalition also plans to address concerns relating to EPA's alleged conflation of hazard and risk when crafting TSCA remedies, and its regulation of exempt polymers.
https://insideepa.com/daily-news/new-industry-coalition-launched-tsca-new-chemicals-review-issues
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EPA Watchdog to Assess TSCA Chemical Data Reporting Rule
Aug 24, 2017 | Chemical Watch
The US EPA's in-house watchdog is planning to assess the TSCA Chemical Data Reporting (CDR) rule.
The agency's Office of Inspector General (OIG) says the evaluation is intended to examine whether the EPA is using CDR data to prioritise substances for the human health and environmental risks they may pose. And it wants to examine how the agency ensures companies are complying with the reporting scheme's requirements.
The OIG has requested that the agency furnish it with:
· policies, procedures and guidance covering how CDR data is used in the prioritisation of chemicals for TSCA risk evaluations;
· documents regarding the quality assurance and quality control of CDR data; and
· information on how CDR violations are enforced.
https://chemicalwatch.com/58343/epa-watchdog-to-assess-tsca-chemical-data-reporting-rule
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Four Milestones Since the Birth of a Significantly Revised TSCA
Aug 23, 2017 | National Law Review
By Jane E. Montgomery and Kaitlin C. Straker
Following the one year anniversary of significant amendments to the Toxic Substance Control Act (TSCA), there has been a flurry of activity related to the Act—from new rules issued by the Environmental Protection Agency (EPA) to lawsuits filed across the country. Here are some of the major highlights:Proposed Expansion of the Science Advisory Committee on Chemicals (SACC)
The SACC was created to provide scientific advice to the EPA on its regulation of chemicals under TSCA. The SACC includes experts in toxicology, environmental risk assessment, exposure assessment, and sciences related to TSCA regulation and currently consists of 18 members. The EPA is proposing to increase the size to 24 members, according to a notice published to the Federal Register on August 3.
The purpose of the call is likely to add more industry voices to the largely academic committee. Members of the SACC are nominated through a public call published in the Federal Register and then appointed by the EPA Administrator. Members serve staggered terms of two to three years.Defined New Framework Rules
In late June, the EPA issued three new, final framework rules explaining how it will prioritize and evaluate the risks presented by chemicals. The three rules include a prioritization rule, a risk evaluation rule, and a final inventory notification rule, which were respectively published in the Federal Register on July 20 and August 11. The prioritization rule lays out how the EPA plans to prioritize chemicals, including determining whether a chemical shall be considered a high priority or low priority. High priority chemicals will require additional study whereas low priority will not require immediate, additional study. The process involved in prioritization includes: initiating the prioritization process, providing opportunities for public comment, screening the chemical against certain criteria, and determining priority. The rule will become effective September 18, 2017. The EPA identified the first ten chemicals in 2016 and is in the process of reviewing them. The risk evaluation rule describes how the EPA will determine whether a chemical presents “unreasonable risk of injury to health or the environment.” The risk evaluation step occurs after prioritization. The steps of the process include: scope, hazard assessment, exposure assessment, risk characterization, and a risk determination. The rule will become effective September 18, 2017. The final inventory notification rule requires electronic reporting by industry businesses of any chemical that was manufactured in the United States in the last ten years. This rule allows the EPA to determine which chemicals are still active in commerce, focusing the burden of conducting risk evaluations only on those chemicals still being used. The EPA will use the reporting to update the TSCA Inventory—which was reviewed and updated based on internal information alone in June 2017. The rule became effective on August 11, 2017, and manufacturers have until February 2018 to report to the EPA. There is also a provision to allow notification by chemical processors within 420 days of the effective date of the rule. EPA Issued External Party Guidance for Risk Evaluations
In June, the EPA issued a guidance document for persons, called “external parties” in the document, who are interested in submitting a draft chemical risk evaluation for the EPA to consider. The guidance aims to help external parties submit risk evaluations that are of the same quality as those done by the EPA, so that the TSCA program can be improved through the use of external party risk evaluations. The private party risk evaluation process is new and parties are just beginning to understand and contemplate how this process may short-circuit the EPA’s rather lengthy process of reviewing new chemicals. As we have noted before, the Lautenberg Act changes the standard from a proof of “safety” to a proof of “unreasonable risk.”
The guidance document begins by describing the statutory requirements of risk evaluations as set forth under the TSCA. Next, it describes the scientific standards for evaluations, including a discussion on best available science, the weight of evidence, and data quality. Third, the guidance explains the evaluation process from the scope to exposure and hazard assessments to the risk characterization. The guidance concludes with a discussion of risk determination following a risk evaluation.Multiple Lawsuits Challenge Framework Rules
In addition to the regulatory activity surrounding the TSCA, several lawsuits have been filed in multiple districts challenging the EPA’s framework rules.
· On August 10, 2017, Safer Chemicals, Healthy Families, et al. filed suit challenging the framework rules in the Ninth Circuit.
· On August 11, 2017, the Alliance of Nurses for Healthy Environments, et al., which includes the Natural Resources Defense Council, challenged the rules in the Fourth Circuit.
· On August 11, 2017, the Environmental Defense Fund filed suit regarding the rules in the Second Circuit.
· On August 15, 2017, Earthjustice filed two suits in the Northern District of California challenging the rules.
While most of the petitions for review do not explicitly list the reasons for seeking review, the Safer Chemicals, Healthy Families challenge does explain its reasoning. It states that it is challenging the framework rules, among other things, as arbitrary and capricious, an abuse of discretion, and in excess of statutory authority.
These changes to the framework rules are designed to give manufacturers clearer guidance on how chemicals will be evaluated and regulated. However, with challenges pending, it remains to be seen how the regulations will ultimately impact the chemical manufacturing industry as well as how chemicals are introduced into commerce.
https://www.natlawreview.com/article/four-milestones-birth-significantly-revised-tsca
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EPA Struggling with Perchlorate Review, Raising Doubts on Court Deadline
Aug 23, 2017 | Inside EPA
By Maria Hegstad
EPA is struggling to complete a peer review of the science and modeling underlying its efforts to assess and regulate the ubiquitous rocket fuel ingredient perchlorate in drinking water, raising doubts that the agency will be able to meet its court-ordered October deadline for completing the work.
“It appears highly unlikely that they will meet the deadline,” an industry source says, though the source questions what penalties will result from missing it.
Sources say the agency has yet to schedule a planned second peer review panel that is slated to offer advice on EPA's planned use of a model that federal scientists have worked to complete for use in determining dose-response and therefore the appropriate level at which to set a drinking water standard for perchlorate.
In addition to not yet scheduling the peer review meeting, the agency has also not announced who will sit on the panel or requested comment on prospective members, or on the material to be discussed.
Further complicating the issue is the creation of an interagency working group, which met earlier this month to discuss draft charge questions that EPA has prepared for the second peer review panel, sources tell Inside EPA.
But sources say the group had concerns with the draft questions that EPA prepared. In part, this was because the agency declined to provide the underlying material that the peer review panel is slated to review, one source says.
The recent interagency committee meeting “didn't go well in terms of information shared. Panel members were disgruntled because EPA would not give them the approach document that the peer review panel is to scrutinize,” an industry source says.
“They don't know what to expect, they were not provided with the approach document,” the source says, adding, “It's a process issue.”
EPA was unable to respond to a request for comment by press time.
While former EPA Administrator Lisa Jackson formally determined in 2011 that perchlorate met statutory conditions and should be regulated, the agency was not able to act on that within the two-year time-frame required by the Safe Drinking Water Act (SDWA).
EPA's Science Advisory Board (SAB) directed development of the model in 2013, but the lengthy time it took to develop the model set back the agency effort to regulate the compound.
The Natural Resources Defense Council (NRDC) eventually sued over the missed deadline in February 2016, a suit that ultimately resulted in a settlement that set a series of deadlines for EPA to complete the process, with the first deadline looming Oct. 18.
The settlement says the agency intends to complete by then a peer review of materials that will inform the SDWA rulemaking. The consent decree says that if EPA fails to complete peer review by the Oct. 18 deadline, it will update the U.S. District Court for the Southern District of New York with a status report by Oct. 30.
The settlement spells out additional court-ordered deadlines for EPA to propose a drinking water goal for perchlorate by Oct. 31, 2018, and finalize it by December 2019.
Lengthy Review Process
With the deadline nearing, sources are now questioning whether EPA will be able to meet it, given the lengthy process peer review represents, even when conducted by a contractor not subject to the Federal Advisory Committee Act requirements that SAB follows.
It is unclear, however, what penalty may result from EPA's missing the deadline, if EPA has changed its plans, or if it still intends to try to meet the deadline.
NRDC did not respond to requests for comment.
Further complicating the process is the critical review that the peer review panel gave to the model that EPA crafted with Food and Drug Administration scientists to elucidate dose-response of perchlorate exposure. Sources indicate that EPA has sought to address these issues with the model before the second peer review.
Most of the peer reviewers in the group's final report, including the panel chairman, Hugh Barton, an associate research fellow with pharmaceutical giant Pfizer, Inc., questioned the model's readiness for regulatory use, or suggested that they were unable to judge its fitness because they were unaware of its purpose.
Barton, a modeling expert, was a key member of the 2013 SAB panel that reviewed EPA's literature search and white paper intended to inform the agency's ongoing effort to regulate perchlorate in drinking water. That panel -- at the urging of Barton and other modelers on the panel -- recommended that EPA use a modeling approach to inform the levels at which it sets its health-based maximum contaminant level goal (MCLG) for perchlorate and ultimately the enforceable standard for the chemical, which considers treatment, feasibility and cost.
At the time, the advice was considered novel because it called on EPA to use a modeling approach rather than the traditional algebraic approach to setting drinking water goals. The reviewers' comments highlight the technical challenges of such an approach, even for the rare chemical, like perchlorate, whose mode of action is generally well-understood.
Perchlorate is one of several chemicals known to be inhibitors of iodine uptake, which helps to regulate thyroid hormones. If the thyroid is sufficiently altered for too long during sensitive developmental stages, this can lead to neurodevelopmental and other effects, such as goiter.
Barton said in the final report that lack of a "clear description of how the model and its outputs would be used in the risk assessment process makes it difficult to evaluate whether the model is fit for purpose. Models can always be improved, but the question needs to be whether the model is ready for the intended" use.
Still, the panel in January also appeared to divide over some points, largely those with modeling or risk assessment experience rather than clinical backgrounds, suggesting the model may be adequate for some applications with limited improvements. They noted that models can always be improved, but that large scale revisions are time-consuming. They questioned whether some of the changes other panelists recommended would be worth undertaking.
As part of a contractor-managed panel, the experts are not required to reach consensus on their answers to EPA's charge questions. Instead, the contractor provided EPA with a report containing a common summary of the panel's discussion written by its chairman and individual reports from each reviewer answering the charge questions. The result is a document that appears to provide EPA varying opinions. This may complicate EPA's ability to respond to certain recommendations, or make it easier for the agency to dismiss some challenging recommendations.
https://insideepa.com/daily-news/epa-struggling-perchlorate-review-raising-doubts-court-deadline
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Aug 24, 2017 | Chemical Watch
The Netherlands has notified Echa of its intention to prepare a restriction proposal on eight carcinogenic polycyclic aromatic hydrocarbons (PAHs) in plastic and rubber granulates used as infill material in synthetic turf pitches.
It aims to assess the risks to human health associated with the following substances:
· benzo[a]pyrene (BaP);
· benzo[e]pyrene (BeP);
· benzo[a]anthracene (BaA);
· chrysen (CHR);
· benzo[b]fluoranthene (BbFA);
· benzo[j]fluoranthene (BjFA);
· benzo[k]fluoranthene (BkFA); and
· dibenzo[a,h]anthracene (DBAhA).
The call invites interested parties to submit information they have on PAHs in granulates, information on alternatives used and cost information. It also welcomes any other information on the possible risks of using synthetic turf.
The call is open until 18 October.Downstream user advice as Chromium VI sunset nears
Echa has moved to clarify the situation for downstream users of chromium VI compounds as their 21 September sunset date approaches.
In a question and answer on its website it says downstream users can continue using the compounds after the sunset "even if the Commission has not decided to grant or not to grant an authorisation".
This continuation, it says, is possible if a company up the supply chain applied for an authorisation for their use before the latest application date. This was 21 March 2016.
"As long as the authorisation is pending the downstream users do not need to do anything extra," the agency says. "Once the Commission has made its decision, and if an authorisation is granted, downstream users will need to notify their use to Echa."Tattoo survey deadline extended
The deadline on Echa's survey of chemicals in tattoo inks and permanent makeup has been pushed back to 10 September. The original deadline was 20 August.
The European Commission asked the agency to assess the need for a EU-wide restriction. Echa had expected to submit a dossier in July, but this has been delayed until 6 October because of the "complexity" involved.Iuclid cloud information added to agency advice
Echa has updated its introductory text on preparing a registration as a Iuclid document for the May 2018 REACH deadline with information about the cloud version for SMEs. This was launched at the end of July.
It says an update of the support pages is on the way and will be translated and published soon.Downstream user mindmap fixed
Following feedback on its interactive guide for downstream users, Echa has fixed several broken links. The mindmap, the agency says, is now running properly and can be used to quickly find relevant information.
https://chemicalwatch.com/58341/echa-round-up
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Antiseptic Chemical Could Be Declared Toxic by Canada
Aug 24, 2017 | BNA Daily Environment Report
By Peter Menyasz
Concern for aquatic species prompted Canada to propose declaring as “toxic” chlorhexidine and its salts, which are commonly used as an antiseptic and preservative in drugs, disinfectants, creams, and cosmetics.
The government is considering new requirements on industries that use the chemicals, which could include voluntary agreements on adopting pollution controls, plans to prevent releases, guidelines, and codes of practice for using the substances.
It's unclear how much of a problem a toxic designation would be for the users in the chemicals sector, as the volumes imported—about 10 tank cars per year—aren't significant compared to other chemicals, W. Scott Thurlow, legal counsel and director of chemicals management with the Chemistry Industry Association of Canada, said.
“I have shared the notice with members and did not receive any feedback immediately,” Thurlow told Bloomberg BNA in an email.
Global firms such as Becton, Dickinson and Company,and Johnson & Johnson make health care products that rely on the compound. It is also used in bathing cloths, oral rinses, intravenous catheters, topical dressings, and implantable surgical mesh.
Not Natural
An updated draft screening assessment of chlorhexidine and its salts found that discharges to water from industrial uses pose a risk to aquatic organisms, meeting a criterion for toxicity under the Canadian Environmental Protection Act, the government said Aug. 19.
The chemicals don't occur naturally and aren't manufactured in Canada, but have been imported, according to the government. As recently as 2011, industries imported up to 100,000 kilograms of some of the compounds, it said. The chemicals were not found to pose human health risks and are frequently used to sterilize surgical instruments and skin prior to surgical procedures. It is effective against a range of microorganisms but does not inactivate spores.
They are used as broad-spectrum antiseptics and antimicrobial preservatives in products including prescription and non-prescription human and veterinary drugs, hard-surface disinfectants, skin antiseptics, natural health products, and cosmetics.
Chemical Control Options
A draft risk management approach document, also released Aug. 19 by Environment and Climate Change Canada, proposes the use of one or more options, including:
• requiring industries to develop pollution prevention plans;
• use of guidance documents to give industries and regulators clear direction on reducing emissions, effluents, and wastes; and
• voluntary environmental performance agreements with companies calling for specific pollution controls or setting specific performance targets.
Comments provided by industry on those options should address data gaps on uses and releases of the chemicals, including their presence in wastewater, efficiency of existing treatment methods to remove them, best management practices at facilities that use them, potential economic and technical impacts and benefits of controls, and changes in use patterns, the government said.
The notice applies to chlorhexidine, or N,N-bis(4-chlorophenyl)-3,12-diimino-2,4,11,13-tetraazatetradecanediimidamide, and its diacetate, dihydrochloride, and digluconate salts, but specifies that is not an exhaustive list of the compounds that could be covered.
Chlorhexidine was initially assessed in 2013 as part of Batch 12 of the Challenge to Industry initiative under the government's Chemicals Management Plan, but with significant new information on sources of exposure to it and its salts, further review was required, the government said.
The notice and draft risk management document are open to public comment through Oct. 18, 2017.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=119457972&vname=dennotallissues&fn=119457972&jd=119457972
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DOE Argues Lawsuits over Export Terminals Should Be Rejected
Aug 24, 2017 | E&E News PM
By Amanda Reilly
The Department of Energy is aiming to quash a suite of lawsuits challenging liquefied natural gas terminals after a federal court last week upheld its approval of a Texas project.
DOE today filed letters in pending Sierra Club challenges to LNG export terminals, arguing that the litigation raises identical issues that the U.S. Court of Appeals for the District of Columbia Circuit last week rejected.
At issue in the lawsuits is DOE's approval of LNG export terminal projects in Corpus Christi, Texas; Cove Point, Md.; and Sabine Pass, La. The Sierra Club argues that the department failed to adequately study the environmental impacts, including greenhouse gas emissions, stemming from the terminals.
But last week, a three-judge panel of the D.C. Circuit found "nothing arbitrary" about DOE's approval of an LNG export project in Freeport, Texas. Judge Robert Wilkins, an Obama appointee, wrote that the department adequately explained why certain impacts were not reasonably foreseeable and properly found that the effect of LNG exports on global greenhouse gas emissions was too speculative (Greenwire, Aug. 15).
DOE argues that the court should abide by the decision in the Freeport case and reject the Sierra Club's challenges to the other LNG export terminals.
The department says it relied in part on the same environmental analysis and life cycle report that the court found sufficient in the Freeport case.
"In its environmental review, DOE reached essentially the same conclusions as in its Freeport order," the department said today in each of its letters filed in the lawsuits. "The present petition for review should be denied."
Since the decision last week, the companies behind the other LNG projects — Dominion Cove Point LNG LP, Cheniere Marketing LLC, Corpus Christi Liquefaction LLC and Sabine Pass Liquefaction LLC — have also all asked the D.C. Circuit to toss out the Sierra Club's litigation.
The Sierra Club has not yet responded to the court filings. Nathan Matthews, a Sierra Club staff attorney, said the group will argue that the pending cases are different enough from the Freeport challenge and should move forward.
"The nature of the environmental reviews that the Department of Energy did for some of these remaining cases were different," he said (Energywire, Aug. 16).
https://www.eenews.net/eenewspm/2017/08/23/stories/1060059120
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DOE Grid Study: Gas Drives Power Shift, But Markets Need Reform
Aug 24, 2017 | PoliticoPro
By Darius Dixon
The Trump administration’s dive into the nation's power system delivered a conclusion Wednesday that the energy world reached long ago: Cheap natural gas is changing the face of the U.S. electric grid.
In an Energy Department report ordered by Secretary Rick Perry, the agency pointed to low power prices and the closure of many coal-fired power plants as mostly due to a surge in supplies of natural gas, which last year topped coal as the nation's biggest source of electricity. But the report also called for "reforms" to power markets that would help bolster the electricity network's resilience by easing the financial pressures on many power providers.
Perry drew a wave of criticism when he ordered the agency to produce the report, saying in his April memo that Obama-era regulations had “destroyed jobs and economic growth” and threaten the grid, and suggested that federal support for renewable power "create[s] acute and chronic problems." Critics warned that Perry appeared to be building a case for federal action to support the coal industry, a priority for President Donald Trump, who promised to revive the suffering industry.
But the new 187-page report paints a far more complex picture of the nation’s power grid, and it laid out many of the issues that have been vexing states and federal regulators, particularly in the Northeast and Midwest.
“The biggest contributor to coal and nuclear plant retirements has been the advantaged economics of natural gas-fired generation,” DOE’s report says. “Low-cost, abundant natural gas and the development of highly-efficient [natural gas combined cycle] plants resulted in a new baseload competitor to the existing coal, nuclear, and hydroelectric plants.”
The agency focused on four different factors that were eating away at the economics of coal and nuclear power: cheap gas, low electricity demand growth over the past decade, government regulations and the influx of renewable energy into the grid. But DOE officials said that assigning a percentage of blame to each of those factors was too great a lift — if it was possible at all. Nevertheless, one official said agency number-crunchers were able to identify natural gas as the biggest factor.
Despite highlighting natural gas as the prime factor that most analysts, utilities and regulators had already settled on, one DOE official said the new study was designed to approach the concern around the retirements of around-the-clock baseload power in a new way, and bring new attention to an important but underappreciated issue.
Perry, in a letter accompanying the report, said the power industry "has experienced massive change in recent years, and government has failed to keep pace.”
"It is apparent that in today’s competitive markets certain regulations and subsidies are having a large impact on the functioning of markets, and thereby challenging our power generation mix. It is important for policy makers to consider their intended and unintended effects,” he added.
The report’s recommendations don’t call for Congress to change any laws or agencies to alter any specific rules. Rather, it appears designed to nudge regulators like FERC to “expedite” its work with grid operators to figure out policies to bridge — or block — new state energy policies and establish fuel-neutral power markets that fairly pay power producers.
The study also suggests that the Nuclear Regulatory Commission, the EPA and FERC revisit a number of their regulations on the power industry, and boost research and development for grid management and coal power plant efficiency.
The report is not likely to be nearly as popular in the coal industry as Trump’s early executive order on climate change and energy, which focused mostly on promoting coal by rolling back regulations at EPA and the Interior Department. Still, the report nodded to the president's call for "energy dominance."
“While DOE is not the main agency tasked in the Order, it should continue to prioritize energy dominance and implementing the Executive Order broadly and quickly,” it states.
Paul Bailey, head of the American Coalition for Clean Coal Electricity, commended DOE and Perry in a statement "for studying the challenges that face the electricity grid. One of the biggest challenges is how to sustain the nation’s coal fleet so it can continue supporting a reliable and resilient electricity grid."
Solar Energy Industries Association head Abigail Ross Hopper said the group was still reviewing the report. But she noted "it’s been proven time and again that a diversified electricity mix is good for the overall system and poses no threat to the reliability of our nation’s grid. On the contrary, solar and other renewables provide significant cost savings, relieve pressure on our nation’s infrastructure and improve the grid’s overall performance."
DOE's call for FERC, EPA and other bodies to help alter the electricity market and aid power plants is at least partly because of the agency's limited power to direct energy policy.
"DOE has no authority," said former FERC Chairman Jon Wellinghoff, a Democrat, ahead of the report's release. "It's FERC that has all the authority ... and DOE does not control FERC. I would say that when I was there, and I'd say it now."
Still, Tony Clark, a Republican former FERC commissioner, said DOE is often used by administrations as a "thought leader in the energy space," given the resources the agency has in its national labs and vast amounts of data.
One DOE official said that most studies of the power system have focused on its reliability. And though a gas-heavy grid is dependable, the official cautioned that those plants are reliable so long as the fuel is there, and the threats to pipelines, physical attacks and resilience deserve a lot of attention.
The study, which Perry had originally sought in June, was also notable for what it doesn’t say.
In letters that became public on Tuesday, coal producer Murray Energy and other companies wrote that during private conversations with CEO Robert Murray, Trump had promised to use DOE emergency power to put in place a two-year moratorium that would require Ohio-based FirstEnergy to keep operating its coal-fired plants even if its power-generating subsidiary goes bankrupt. According to the letters, administration attorneys were concerned about the legality of such an action. One letter said Murray was present when Trump repeatedly directed Perry to grant the request to order the plants to stay open.
But DOE denied the request, saying that “the evidence does not warrant the use of this emergency authority.”
Environmentalists, renewable energy advocates and some analysts were incensed by Perry’s initial April 14 memo as well as some of his public statements about intervening with state energy policies, such as suggesting he planned to have a hand in keeping power plants running.
Perry’s memo, energy guru Peter Fox-Penner said, was “looking through a preconceived, political lens broadly at baseload and blaming renewables policy, which is looking at the wrong culprit. The right direction for a solution is market design.”
Just days after issuing the memo to his chief of staff, Perry said that keeping nuclear power on the grid served a national security interest and can justify moves by the federal government that override state authority.
“I was a very strong proponent of the 10th Amendment — thank you very much, we know how to run Texas,” the former governor said at an energy event in New York City, referring to the amendment that lays out federal authority limits. “Shoe is on the other foot — or the boot is on the other foot — now.”
But on Wednesday, DOE officials said they focused on the specific questions they were tasked with in Perry’s memo and not his public statements.
Clark said the controversy around Perry's statements had gotten out of hand.
“Everything right now in D.C. seems to get spun out of control a little bit in terms of reaction on both sides,” he said. “When it was first announced that there would be a DOE study, you had some folks say every coal plant in Ohio and Pennsylvania was going to be saved. And you had other people setting their hair on fire thinking that this would be the end of the wind and solar. … To me, that was the D.C. spin machine.”
https://www.politicopro.com/energy/story/2017/08/doe-grid-study-gas-drives-power-shift-but-markets-need-reform-161040
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RGGI States Agree to Cut Utility Emissions by Another 30%
Aug 24, 2017 | E&E News PM
By Arianna Skibell
The governors of nine Northeastern and Mid-Atlantic states have committed to cut carbon emissions from power plants by an additional 30 percent through an updated cap-and-trade program.
The Regional Greenhouse Gas Initiative (RGGI), the first market-based regulatory program to reduce heat-trapping emissions, established a cap on the issuing and auctioning of tradeable allowances for carbon dioxide. Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont participate in the program.
The updated plan unveiled today would add downward cap adjustments to account for extra emission allowances and establish new tools to soak up extra allowances that aren't sold. The move could reduce emissions by over 132 million tons by 2030. The proposed updates will go through a series of notices and comment periods before they are finalized.
Connecticut Gov. Dannel Malloy (D) praised the effort, which would lead to an overall 65 percent carbon reduction since the program began in 2009.
"Despite what deniers say, there is no doubt that climate change is real and is happening, and that the burning of fossil fuels contributes significantly to the dangers we face," Malloy said in a statement.
"No matter the mood in Washington, Connecticut and the other RGGI states will continue moving forward with this highly effective and innovative regional initiative, and with other efforts to support energy efficiency and the deployment of clean energy systems within our borders."
To address lower-than-expected compliance costs and allowance prices that boost the economy but don't necessarily reduce emissions, the updated program would use a tool called an emissions containment reserve, or ECR. A team of researchers at the nonprofit Resources for the Future had proposed the mechanism, which could continue to reduce emissions even when prices are low (E&E News PM, Aug. 22).
"Today's action demonstrates again that RGGI is a leader in [greenhouse gas] emissions regulation," RFF researcher Anthony Paul wrote in an email. "The ECR is a path-breaking innovation in market-based environmental policy design. It brings a sharing of benefits between the environment and the economy."
The bipartisan deal came as the Trump administration continues to roll back Obama-era climate policies like the Clean Power Plan. In the wake of this and President Trump's professed intent to withdraw from the Paris Agreement, more states are pledging independent action. New York, California and Washington state have launched the U.S. Climate Alliance, which has since gathered support from nine other states and the territory of Puerto Rico.
And in coming months, RGGI is likely to expand its reach. New Jersey is expected to rejoin the program after a hiatus under Gov. Chris Christie (R), and Virginia Gov. Terry McAuliffe (D) has signaled interest in joining the effort as well.
The announcement brings the nine participating states closer to the conclusion of the program's 2016 review, which has lasted over a year and included eight public meetings; more than 120 comments from experts, policymakers and organizations; and almost 30,000 personal comments.
The news has drawn accolades from across government, nonprofit and academic circles. Natural Resources Defense Council President Rhea Suh said RGGI's "bold plan" will cut power plant emissions while creating economic benefits.
"Within the past month, California and the RGGI states have shown the world there are still climate leaders here in the U.S.," she said in a statement. "Now we need other state, city, and federal officials to follow suit."
Vicki Arroyo, executive director of the Georgetown Climate Center, said the proposal demonstrates continuing state leadership on climate change and clean energy.
"Today's announcement demonstrates that despite federal rollbacks, we can expect states and communities to pursue more smart investments, more energy efficiency, more renewable energy, and more clean energy job opportunities," Arroyo said in a statement.
"It also shows that once again northeast and mid-Atlantic states are stepping up at a time when our country so desperately needs real leadership on pollution, energy, and climate issues."
RGGI states will now seek stakeholder comment on the draft program. A public meeting is scheduled for Sept. 25.
https://www.eenews.net/eenewspm/2017/08/23/stories/1060059124
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While Keeping CPP Litigation on Ice, Judges Warn EPA About Delaying GHG Regulation
Aug 24, 2017 | Platts
By Annalee Armstrong and Jasmin Melvin
A federal appeals court has extended by 60 days the abeyance period for the Clean Power Plan litigation pending the Environmental Protection Agency’s review of that regulation. But in an unusual move, two of the 10 judges on the panel reminded the agency of its statutory obligation to regulate greenhouse gases, indicating that at least some of the judges may be growing impatient with the continued delay in regulating carbon emissions from power plants.
The DC Circuit Court of Appeals in April suspended the lawsuit (State of West Virginia , et al. v. EPA, 15-1363) over the contentious rule that sought a 32% drop from 2005 levels in the existing generation fleet’s carbon emissions by 2030.
The two-page order issued August 8 by the DC Circuit extended the abeyance period and asked EPA to continue filing status updates every 30 days. The extension would have been a procedural development had it not been for a concurrence added to the order by Circuit Judges Patricia Millett and David Tatel.
Millett and Tatel reminded the participants in the matter that the Supreme Court issued an indefinite stay of the CPP pending resolution of the legal challenge and any resulting appeals. That stay has remained in effect even as the DC Circuit has paused the litigation to allow EPA to review the rule through the lens of the new administration.
“That in and of itself might not be a problem but for the fact that, in 2009, EPA promulgated an endangerment finding, which we have sustained. That finding triggered an affirmative statutory obligation to regulate greenhouse gases ,” the judges wrote.
EPA’s 2009 finding declared that GHG emissions endanger the public health and welfare and that carbon dioxide was the primary driver of GHG emissions from human activities. The endangerment finding was upheld by the DC Circuit, and the Supreme Court declined to review that decision.
Environmentalists and others have pushed a narrative that the Trump administration can’t kill the CPP without replacing it with some other regulation addressing carbon emissions , insisting that the endangerment finding ties the government’s hands as the Clean Air Act requires EPA to set emissions standards for air pollutants.
Continuing, Tatel and Millett added that if EPA wishes to absolve itself of the requirement to regulate greenhouse gases , the agency must either make a new finding that greenhouse gases do not contribute to climate change or present some other reasonable argument as to why the agency “cannot or will not” do so.
Practically speaking, several attorneys have pointed to EPA’s vast public record on the need to regulate and how to regulate as a significant hurdle to any effort the new administration may pursue to walk back those statements.
Still, that statement by the judges is significant, according to Sierra Club Managing Attorney Joanne Spalding, who said Tatel and Millett are underscoring the importance of the environmental issue that is not being addressed while the agency drags its feet.
“They are expressing concern that there is this Catch-22 — where EPA is saying we want to take another look at this, [and] the court is trying to give the new administration the benefit of the doubt,” Spalding said. “But at the same time, we’re in a situation where the rules are not in place … and it’s a critical pollutant that obviously needs to be controlled.”
The concurrence also reaffirms the Supreme Court’s finding that EPA has the obligation to regulate carbon emissions from fossil fuel power plants, Spalding added.
In its most recent status report to the court, filed July 31, EPA said the review of the CPP is ongoing, consistent with President Donald Trump’s March executive order directing the agency to undertake that review. So far, EPA has advanced a proposed rule to the Office of Management and Budget as a result, but the status report contained few additional details. EPA asked the court to continue holding the litigation in abeyance “pending the conclusion of the expected forthcoming rulemaking.”
Overall, details have been slow to take shape on the Trump administration’s plan for addressing carbon emissions . Specifics on the forthcoming rulemaking are scarce, and OMB must wrap up its review before the new rule can be released for public comment.
Washington and energy industry observers expect EPA to call for a complete rollback of the Obama-era carbon rules on the grounds that the agency lacked authority to regulate the power sector in such a way, an argument CPP opponents have made in court.
In response to the July 31 status report, environmental groups including the Sierra Club complained that the agency had failed to provide any new details on the status of the rule, and had in fact left out information released by the OMB’s Office of Information and Regulatory Affairs indicating that final action on the CPP could be at least a year away.
On July 21, OIRA issued its current unified agenda, which details the administration’s regulatory priorities for the near and long term. The CPP was listed as a “long term action,” which OIRA defines as an item that is not expected to be completed within 12 months from the date of the agenda’s publication.
“The court should decide the case on the merits, or terminate it by remanding the case to EPA,” the environmental groups argued.
Significant questions remain as to how the Supreme Court’s stay would be applied in the event of remand, but the environmental groups argue that the case has been awaiting a final decision on the merits for nearly a year following the September 2016 oral arguments — longer than the high court imagined when it put the stay in place.
Tatel and Millett said the stay when combined with the DC Circuit’s abeyance had “the effect of relieving EPA of its obligation to comply with [its] statutory duty for the indefinite future.” The judges, however, stopped short of calling for the stay to be lifted, instead saying that “questions regarding the continuing scope and effect of the Supreme Court’s stay … must be addressed to that court.”
A separate three-judge panel of the DC Circuit on August 10 also ordered consolidated lawsuits (State of North Dakota , et al. v. EPA, 15-1381) over EPA’s associated carbon pollution standard (CPS) for new power plants to “remain held in abeyance pending further order of the court.”
The CPS, which applies to new, modified and reconstructed power plants, put a 1,000 lb of CO2/MWh limit on emissions from new fossil fuel-fired generation and mandates the use of carbon capture and sequestration at any new coal facilities. The rule was also hit with a litany of lawsuits by many of the same players embroiled in the CPP legal battle. It, however, was not stayed, allowing the rule to take effect.
Under the August 10 order, EPA is to file status reports to the court every 90 days beginning October 27. Further, parties to the consolidated CPS cases “are directed to file motions to govern future proceedings in these cases within 30 days of the conclusion of EPA’s proceedings.”
http://blogs.platts.com/2017/08/24/cpp-litigation-epa-ghg-regulation/
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Ruling Muddies the Waters in Power Plant Pollution Case
Aug 24, 2017 | BNA Daily Environment Report
By David Schultz
The future of a lawsuit over EPA limits on power plant pollution is uncertain after an appeals court ruled that only parts of the suit could move forward, but did not specify which parts.
The outcome of the lawsuit in the U.S. Court of Appeals for the Fifth Circuit could determine how far the owners of power plants must go to prevent toxic effluent from entering waterways. During the Obama administration, the Environmental Protection Agency enacted a rule that placed stronger requirements on the electric utility industry. But the agency's new leadership has said it's considering repealing parts of this rule.
Environmental groups have been squaring off against the electric utility industry in court over the rule's legality since it went into effect in 2015 (80 Fed. Reg. 67,837).
Now, only the parts of the lawsuit that don't pertain to the EPA's reconsideration of the rule can move forward, according to an Aug. 22 ruling from Judge Edward Prado. He put on hold the claims in the suit that overlap with the EPA's reconsideration of the rule (Sw. Elec. Power Co. v. EPA, 5th Cir., No. 15-60821, 8/22/17).
However, Prado's ruling didn't specifically name which claims can move forward and which claims are pre-empted by the EPA's reconsideration. Instead, it ordered the parties to come up with a schedule within three weeks that governs how the remaining claims should be handled.
Thomas Cmar, an attorney representing environmental groups in the lawsuit, said the mixed ruling had left him uncertain how to proceed. “The court essentially punted,” Cmar, who is with Earthjustice, told Bloomberg BNA.
Regardless of the outcome of the lawsuit, power plants don't need to abide by the EPA effluent rules at the moment because the agency halted enforcement of the rule earlier this year. Cmar and other environmental groups have a separate lawsuit pending in federal district court that challenges that action.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=119457963&vname=dennotallissues&fn=119457963&jd=119457963
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Aug 23, 2017 | Wall Street Journal
By Editorial Board
The U.S. shale boom has lowered energy prices and created hundreds of thousands of jobs across the country. But those living in upstate New York and New England have been left in the cold by New York Gov. Andrew Cuomo, whose shale gas blockade could instigate an energy crisis in the Northeast.
Progressives once hailed natural gas as a “transition fuel” to renewables like solar and wind, but now they are waging a campaign to “keep it in the ground.” New York is ground zero. First, Mr. Cuomo banned hydraulic fracturing (i.e., fracking), and now he’s blocking natural gas pumped in other states from reaching Northeast markets.
The Empire State’s southern tier overlays the rich Marcellus and Utica Shale formations, among the most productive drilling regions in the country. Shale fracking has been an economic boon for Appalachia—and could have lifted upstate New York. Since 2010 natural gas production has surged 520% in West Virginia, 920% in Pennsylvania and 1880% in Ohio. (See chart nearby).
Mr. Cuomo’s predecessor David Paterson imposed a moratorium on fracking in 2010. After winning re-election in 2014, Mr. Cuomo started laying the ground for a White House bid and made the ban permanent. Between 2010 and 2015, New York’s natural gas production plunged by half—which has translated into fewer jobs as well as less royalties for landowners and revenue for local governments.
Last year the Governor compounded the economic damage by blocking the 120-mile Constitution pipeline transporting natural gas from Pennsylvania to upstate New York and New England. Although the Federal Energy Regulatory Commission (FERC) approved the pipeline in 2014, Mr. Cuomo’s Department of Environmental Conservation conducted a separate review and denied a water-quality permit putatively because the developers hadn’t provided sufficient information.
Constitution’s developers challenged the denial in federal court. While the Clean Water Act lets states perform their own environmental reviews, New York appears to have abused its discretion. Last week the Second Circuit Court of Appeals deferred to state regulators while leaving a door open for the pipeline companies to challenge the timeliness of the state review in the D.C. Circuit Court of Appeals.
While Constitution isn’t dead, environmentalists say the appellate-court decision will give New York and other states more latitude to block pipelines, which is no idle threat. Two major pipelines in the Northeast under development will need state approvals, and developers pulled two others in the past two years amid regulatory obstacles in New England.
All of this is ominous since the region desperately needs more natural gas to make up for lost power from the impending shutdown of nuclear and coal plants. New England’s Independent System Operator projects that 14% of the region’s electric generation capacity will be retired within three years and says more pipelines are needed for grid stability.
Mr. Cuomo is also forcing the premature retirement of the Indian Point nuclear plant, which provides a quarter of New York City and Westchester County’s electricity. He hasn’t offered a back-up plan, but natural gas will have to play a role. Renewables (excluding hydropower) make up only 5% of New York’s electric generation, and we doubt the local liberal gentry will abide wind farms off Long Island.
Energy costs in the Northeast are already the highest in the nation outside of Alaska and Hawaii in part due to the shortage of natural gas. Northeast residents pay 29% more for natural gas and 44% more for electricity than the U.S. average, according to a recent study by the U.S. Chamber of Commerce. Industrial users in the Northeast pay twice as much for natural gas and 62% more for electricity.
Electricity and natural gas constitute many manufacturers’ biggest costs, which in part explains why so many are fleeing the Northeast. Since 2010 manufacturing economic output has increased by 1.5% in the Great Lakes region while shrinking 0.7% in New England and 2.4% in New York.
Inclement weather can cause energy costs to skyrocket. During the 2014 polar vortex, natural gas prices in New York City spiked to $120 per million Btu—about 25 times the Henry Hub spot price at the time. Natural-gas power plants in New York are required to burn oil during supply shortages. Due to pipeline constraints and the Jones Act—which requires that cargo transported between U.S. ports be carried by ships built in the U.S.—Boston imports liquefied natural gas during the winter from Trinidad. This is expensive and emits boatloads of carbon.
Speaking of which, about a quarter of households in New York, 45% in Vermont and 65% in Maine still burn heating oil—which is a third more expensive than natural gas and produces about 30% more carbon emissions per million Btu. Yet many can’t switch due to insufficient natural gas and pipeline infrastructure.
Mr. Cuomo’s natural gas blockade is harming residents and businesses throughout the Northeast while raising carbon emissions that he claims are imperiling the planet. The likely Democratic presidential aspirant may hope to ride this record to the White House, but millions of Americans are already paying a high price for his policies
Appeared in the August 24, 2017, print edition.
https://www.wsj.com/articles/cuomos-natural-gas-blockade-1503529234
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Oil and Gas Pipeline Plan Falls Short, Colorado Lawmakers Say
Aug 24, 2017 | BNA Daily Environment Report
By Tripp Baltz
Colorado Democratic state lawmakers say Gov. John Hickenlooper's (D) plan to address underground oil and gas flow lines won't do enough to protect public health and safety, while industry officials maintain they will work with the governor on the proposed changes.
Hickenloooper's plan—which he announced Aug. 22 following two recent fatal accidents involving oil and gas facilities—is a mix of legislative, regulatory, and voluntary measures. The plan includes requirements for identifying, inspecting and pressure-testing natural gas and oil flow lines, which connect wellheads to production facilities. The governor also asked for oil and gas operators to pay for the plugging of the 700 to 800 orphan wells in the state.
Hickenlooper said he believes the state should continue to enforce “abandonment” requirements which were initially included in a Colorado Oil and Gas Conservation Commission notice to operators May 1 after one explosion. The notice requires operators to verify that any existing flow line not in active use is abandoned under commission Rule 1103, including being cut off below grade and sealed.
However, the governor did not include among his proposals a mandate that energy companies provide publicly available maps of underground lines, nor a requirement that new homes be built a minimum distance away from existing oil and gas facilities, something that has been sought by many environmental groups and state lawmakers.
Sen. Matt Jones (D), in a statement provided to Bloomberg BNA Aug. 23, said the governor's plan would prioritize “big corporations’ profits” over “people's health and safety.” Drilling operations “have no business being near people's homes, playgrounds, or schools, and the public has a right to know exactly where existing flow lines are.”
The governor's proposed steps are “good steps but certainly not the end of the conversation,” Rep. KC Becker (D), majority leader in the Colorado House, said in a statement. More meaningful measures should be on the table, she said. “Public health and safety should be our No. 1 concern,” Becker said. “I hope we can make progress in that regard in the 2018 legislative session.” That session begins in January.
Industry Support
Hickenlooper made his proposal in response to two fatal accidents. In April, a home explosion in Firestone, Colo., left two people dead and another person critically injured, and a May explosion of an Anadarko Petroleum Corp. oil tank in Mead, Colo., killed a worker and injured three others. The Firestone incident was caused by a leaking 1-inch natural gas flow line from a well also owned by Anadarko.
Anadarko will continue to help implement “the measures that have been identified” by the state to date, Al Walker, Anadarko chair, president and CEO, said in an Aug. 22 statement.
“We welcome these proposals from the governor, as safety is our utmost priority,” Noble Energy said in an Aug. 22 statement. The inspections and safety examinations conducted under the notice to operators confirms “the high safety standards practiced by the industry,” Dan Haley, president and CEO of the Colorado Oil and Gas Association, said in an Aug. 22 statement.
Noble Energy said in an Aug. 22 statement about Hickenlooper's plan: “We welcome these proposals from the governor, as safety is our utmost priority.”
The inspections and safety examinations conducted under the notice to operators confirms “the high safety standards practiced by the industry,” Dan Haley, president and CEO of the Colorado Oil and Gas Association, said in an Aug. 22 statement.
Tracee Bentley, executive director of the Colorado Petroleum Council, a division of the American Petroleum Institute, said oil and gas producers are “committed to working with the governor and the state over the next several months as we work through these proposals, all the while continuing to deliver the energy that runs our state and our country with the highest possible standards and safety practices.”
Meanwhile, environmentalists echoed the concerns of legislators. “We hope that our leaders will do much more in the near future to ensure that communities are safe and our health and environment are protected from the dangers of oil and gas development,” Pete Maysmith, executive director of Conservation Colorado, said in an Aug. 22 statement.
Seven Steps
The seven steps outlined by the governor are:
• strengthening flow line regulations;
• improving oilfield safety training;
• a peer review of Colorado Oil and Gas Conservation Commission rules;
• remote detection of natural gas leaks;
• enhancing the 8-1-1 “Know What's Below” program, a dial-in system for people to determine the location of a natural gas line before digging;
• creating an industry-supported fund to plug orphan wells; and
• offering rebates for in-home natural gas monitors and phasing out domestic taps.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=119457966&vname=dennotallissues&fn=119457966&jd=119457966
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Practitioner Insights: Preempting NYC's Hazardous Transport Permits
Aug 24, 2017 | BNA Daily Environment Report
By Greg Dillard
The federal Pipeline and Hazardous Materials Safety Administration, which regulates the interstate transport of hazardous materials, recently preempted New York City's local permit and inspection requirements for vehicles transporting hazardous materials within the city. PHMSA determined that the city's permit requirements were unfair and created unnecessary delays for out-of-town carriers passing through New York. It also found that the city was not properly allocating its collection fees, as required, toward hazardous material transportation purposes.
PHMSA was responding to a complaint by the American Trucking Associations (ATA). Its finding reinforces that requesting a preemption decision from PHMSA is an effective method for challenging local hazardous materials transportation rules that may unreasonably inconvenience certain carriers. PHMSA's decision also reaffirms that while localities may impose requirements on hazardous materials carriers based in their jurisdictions, requirements placed on out-of-town transport are questionable and may go against the federal government's efforts to uniformly regulate interstate transport.
Challenged Local Permits
Local transportation rules and permit requirements often either seek to favor local transportation companies over out-of-town carriers or inadvertently overburden non-local carriers, which struggle to keep up with and meet the various local rules. As a result, local rules can interfere with the free flow of goods across the country. The New York City Fire Department's requirement of a permit for the transport of hazardous materials, including flammable liquids, combustible liquids, compressed gases, and explosives, was one such example. The fire department's rules restricted the times and routes of travel, as well as when and where carriers had to be inspected.
In 2014, the ATA, later joined by other industry groups, challenged the city's permit requirements by requesting a preemption decision from PHMSA. Consequently, PHMSA initiated a notice and comment period, during which time it received comments on the city's rules from interested parties. The review and decision-making process ultimately took nearly three years as PHMSA delayed issuing its decision a few times to request more time and comments from the fire department and other affected organizations.
NYC's Permits Delayed Out-of-Town Carriers
Ultimately, PHMSA determined that the new inspection requirement, as enforced by New York City, was unfair to out-of-town carriers. The federal regulation mandates that hazardous materials must be transported without “unnecessary” delay. Previous PHMSA preemption cases have confirmed that a locality may require a permit and inspect vehicles coming from outside its jurisdiction only if it can conduct the equivalent of a timely “spot” inspection when the vehicles enter its jurisdiction. But the locality may not require an inspection if the carrier's trip is delayed for several hours or longer. This makes sense as the federal rules do not allow hazardous materials to sit around simply so a locality can collect an inspection or transportation fee.
In this case, the fire department offered a limited window to receive a same-day permit and inspection at its Hazardous Cargo Unit (HCU) facility, which was open only Monday through Friday from 7:30 am to 3 p.m. Similarly, the city's alternative requirement that carriers could receive a permit if they scheduled an appointment in advance for an on-site fleet inspection with the fire department was only feasible for in-town carriers, failing to prevent unnecessary delay for out-of-town carriers. For example, a truck entering New York City when the HCU was closed could be forced to wait hours or even days for an inspection. Similarly, out-of-town carriers are unable to realistically arrange a fleet inspection at their own facilities in advance because their fleet facilities are not located in New York City. As a result, the city was not providing the “on demand” or “roadside” inspections that would prevent hazardous materials to be transported without unnecessary delay.
NYC Permit Fees: Not Fair or Accounted For
In addition, PHMSA determined that New York's permit fees violated the federal law, which requires that any payments collected by a locality for the transport of hazardous materials must be “fair” and used for hazardous material transportation purposes. This law seeks to prevent localities from earning money on the transport of hazardous materials and overburdening interstate commerce, by only allowing localities to command a fee for legitimate health and safety reasons.
Under prior U.S. Supreme Court cases, a fee is “fair” if it (1) is based on some reasonable approximation of the use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce. PHMSA's prior interpretation prohibits fees that are the same for every transporter without being based on some fair estimate of use of local facilities. Here, the city's permit was a flat fee, meaning it made no distinction between in-town or out-of-town carriers, nor did it differentiate between vehicles or carriers that used its roads and facilities more than others.
The city also failed to demonstrate that the funds collected were spent on hazardous materials enforcement or emergency response training, as it said. A locality must show that it spends its earned fees on hazardous materials transportation purposes. In this case, the fees went toward New York City's general funds and the fire department did not make any specific accounting of how the collections were spent. The fire department merely made general statements that the fees covered the cost of the inspections and the administrative processing of the permits. PHMSA said such general statements were not enough.
Conclusion
Assuming this decision isn't overturned by a federal appeals court, PHMSA's preemption decision supports the established principle that participants in interstate commerce should be treated equally with locals. Any local laws or regulations that unjustly burden out-of-town transportation more than in-town transportation are unacceptable, and PHMSA continues to enforce this doctrine.
Greg Dillard is a partner in Katten Muchin Rosenman's Environmental and Workplace Safety practice and co-leads its Major Accident and Incident Response practice. Nick Morrell is an associate in Katten Muchin Rosenman's Environmental and Workplace Safety practice and represents companies in variety of litigation and regulatory contexts.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=119457985&vname=dennotallissues&fn=119457985&jd=119457985
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Ewire: Environmentalists Take Their Defense of EPA's Budget to Key States
Aug 24, 2017 | Inside EPA
With lawmakers facing a Sept. 30 deadline to fund EPA and other agencies or risk a government shutdown, environmentalists and other agency supporters are using the congressional recess to make the case that Congress should reject the Trump administration plans to slash the agency's budget and provide at least level funding.
While House appropriators have already advanced legislation that rejects the administration's proposed 31 percent cut to EPA for fiscal year 2018, they are nevertheless cutting $528 million from FY17 levels. Once approved by the House in the coming weeks, the bill will provide a prelude to further talks with the Senate, which has yet to act on its own measure.
While Senate appropriators have echoed their House counterparts in seeking to restore some EPA funds beyond what the administration has proposed, Democrats have long warned that a continuing resolution or omnibus funding measure could create unpredictable dynamics on the fate of specific programs in negotiations with the White House, potentially limiting the ability of spending panels to defend programs.
“I think a lot of it is going to depend on what kind of will the Congress has to do what is right,” Sen. Jon Tester (D-MT), a member of the appropriations panel, told Inside EPA earlier this year.
That might explain why environmentalists and others concerned about potential cuts have been drumming up support for their cause.
Over the past few weeks, they have held events in Florida, New York, New Jersey, Montana and other states warning of the adverse local environmental effects that the administration's proposed 31 percent cut would have.
For example, in Florida Aug. 22, Environmental Defense Fund released a report that lays out how the administration's proposed cuts to EPA in FY18 “would affect the nation's third most populous state by reducing -- and in some cases zeroing out -- federal aid for a myriad of water, air and land protection efforts,” according to the Pensacola News Journal.
Among other things, the report warned of cuts to local grantees, the 54 Superfund sites scattered around the state, the Everglades cleanup and local estuary protection efforts. On Superfund, the Journal noted, “It's difficult to know which sites would not get planned funding but Trump administration officials say the process of cleaning up such toxic sites have been mired in bureaucratic red tape that have contributed to delays and expense.”
In upstate New York, Rep. Brian Higgins (D) and several local environmental groups held a 'Save the EPA' rally in Buffalo. According to WGRZ, Higgins told the event, "We should not allow this president and his administration to destroy the environment that people have committed to restoring for not weeks, not years, but decades," Higgins said.
In New Jersey -- home of House Appropriations Committee Chairman Rodney Frelinghuysen (R) -- local officials and environmentalists held an event last week, where they called for bipartisan support to maintain current funding levels, according to NJ.com.
"The budget is across-the-board devastating for the environment," David Pringle, New Jersey campaign director for Clean Water Action told the event. "So we really need all of our Congressional delegation, Democrats and Republicans, to work together to call for full funding, not just cutting less, but full funding for all of these critical programs for the environment and for clean energy, not dirty energy."
And in Montana, home to both Tester and Sen. Steve Daines (R), another appropriator, local environmentalists and other supporters held a press conference where they renewed concerns that cuts to EPA would slow cleanups at some of the state's massive contaminated Superfund sites, including in Butte, MT, site of the largest Superfund facility in the country.
Joe Griffin, a retired hydrologist formerly with the state's Department of Environmental Quality who managed the Butte Specialty Soils Superfund locations, told the press conference that EPA needs more people to work on certain areas, according to NBC Montana. "That requires EPA to have more money to manage for a longer period of time and to have a bigger crew of consultants and scientists to work on these projects," Griffin said.
We'll have lots more coverage on the status of EPA's budget.
https://insideepa.com/daily-feed/ewire-environmentalists-take-their-defense-epas-budget-key-states
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Scott Pruitt's Anti-Environmental Agenda Hits a Snag: The Courts
Aug 23, 2017 | Environmental Defense Fund
By Fred Krupp
It looks like Scott Pruitt – one of the Trump administration’s most adept operators – may have finally met his match: the law.
With the White House mired in dysfunction, the U.S. Environmental Protection Agency chief has spent the past six months trying to systematically tear down America’s clean air and water safeguards.
But now – thanks to states, the judiciary and the growing voice of the American people – Pruitt’s easy ride may be over.EPA chief suffers 3 court losses in 2 months
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit, with all 11 active judges participating, dealt Pruitt a setback in his attempt to loosen limits on methane pollution for thousands of oil and gas facilities. That makes a hat trick of Pruitt’s recent losses.
Shortly before this setback, Pruitt withdrew an attempt to delay important actions on smog pollution after coming under legal pressure from states and community groups.
Those defeats followed a decision in early July in which a three-judge panel of the D.C. Circuit denied Pruitt‘s attempt to suspend the methane pollution limits. The full court affirmed that panel’s decision in the August 10 ruling.
Pruitt carries industry’s baggage
Pruitt worked closely with industry lobbyists to block more than 30 environmental rules during his first few months in office, and his attempt to set aside the pollution reductions for oil and gas wells came as no surprise. He has a well-documented history carrying industry’s baggage that dates back to his days as Oklahoma’s Attorney General.
Pruitt announced his initial attempt to postpone methane rules shortly after a closed-door meeting in March with the board of the oil industry’s largest trade association, which had been urging him to delay these protections.
The standards cover facilities built or heavily modified since September 2015 – more than 18,000 wells nationwide, and counting. They sensibly require companies to check sites for leaks of dangerous air pollutants, and to repair them promptly.
Suspending the methane rules, even for a few months, would expose communities across the country to tons of additional pollution at the peak of summer when air quality is at its worst.
Court: EPA’s lawsuit “inaccurate”
The EPA failed to even mention – much less consider – these impacts before trying to suspend the methane rules. In fact, the record shows Pruitt’s justification for halting the methane standards was seriously misleading. The court methodically rejected the agency’s arguments, concluding they were “inaccurate and thus unreasonable.”
The August 10 ruling is a strong reminder that the Clean Air Act and other laws cannot simply be swept aside, and it makes clear that facts and an open process matter.
Pruitt is now trying to delay compliance with the same methane pollution limits by two full years – even though he conceded publicly that doing so would likely harm children’s health.
As public pressure mounts, Congress wavers
At a public hearing this summer, citizens opposing the roll-back outnumbered supporters 116 to 2 – another clear sign that Americans want the EPA to maintain public health protections, not demolish them.
It serves as fair warning to Pruitt that he needs to comply with the law and give the public a voice in the process.
Even in Congress, there are signs that the administration has gone too far.
In May, for example, the White House suffered its first direct legislative defeat on any issue. Three Republican senators crossed party lines to vote down a measure to kill Bureau of Land Management methane waste rules for oil and gas operations on public and tribal lands.
None of this means Congress or the courts will put a complete stop to the Trump administration’s attacks on clean air and water. It’s going to continue to be a tough fight.
But it does serve as fair warning to Pruitt that he needs to comply with the law and give the public a voice in the process.
Pruitt is accountable to the law
As our EPA chief continues his campaign to roll back safeguards, there will surely be additional court challenges. And if he continues his track record of excluding the publicand making inaccurate arguments, we will hold him accountable to the law.
Ultimately, however, what will keep these safeguards in place is what made them happen in the first place – the American people demanding responsible development and a better world for their children.
https://www.edf.org/blog/2017/08/23/scott-pruitts-anti-environmental-agenda-hits-snag-courts
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Exxon Duped Public Over Climate Concerns, Harvard Research Says
Aug 24, 2017 | BNA Daily Environment Report
By Jessica Shankleman
Exxon Mobil Corp. spent the last 40 years undermining public concern over climate change, even as its own scientists determined man-made global warming was real and a serious threat, according to Harvard University researchers writing in a peer-reviewed journal.
“Exxon Mobil contributed to advancing climate science—by way of its scientists’ academic publications—but promoted doubt about it in advertorials,” the Harvard researchers wrote in the journal Environmental Research Letters. “Given this discrepancy, we conclude that Exxon Mobil misled the public.”
The findings could add fuel to lawsuits brought against the world's largest oil explorer by market value. New York's attorney general is probing whether Exxon lied to investors and the public for almost four decades about the impact of climate change on profits. Exxon is one of the world's largest sources of fuels responsible for climate change, producing 10 million gallons of gasoline and other fuels every hour of every day.
The researchers said Exxon has disagreed with their conclusion and said its statements on public policy and climate science “have always reflected the global understanding of the issue,” according to an opinion piece written by two of the authors and published Aug. 23 in the New York Times.
Exxon said it acknowledges climate change is a risk that requires action, and it dismissed the conclusions of the study, saying the researchers are looking for money.
“The study was paid for, written and published by activists leading a five-year campaign against the company,” Exxon said in an emailed statement. “It is inaccurate and preposterous. Rather than pursuing solutions to address the risk of climate change, these activists, along with trial lawyers, have acknowledged a goal of extracting money from our shareholders and attacking the company's reputation.”
Stranded Assets
The study's authors, Geoffrey Supran and Naomi Oreskes, both scholars of scientific history at Harvard in Cambridge, Massachusetts, reviewed 187 climate change communications issued by Exxon between 1977 and 2014. Their article, “Assessing Exxon Mobil's climate change communications,” was published Aug. 23.
While 83 percent of Exxon's peer-reviewed scientific papers and 80 percent of its internal documents acknowledge climate change is real and human-caused, 81 percent of its advertorials expressed doubt over the issue, according to the research. Internal documents accepted the risk of stranded assets caused by climate change, while the advertorials did not.
The researchers point to the example of Exxon scientist Brian Flannery, who in 1985 helped the U.S. Department of Energy write a report acknowledging a scientific consensus on future warming trends caused by carbon dioxide emitted from fossil fuels. Despite that conclusion, company advertorials in 1997 and 2000 downplayed the human effect on climate change and instead promoted “natural variability” in the atmosphere, according to the research.
“Exxon Mobil's scientists and executives were, for the most part, aware and accepting of the evolving climate science from the 1970s onwards, but they painted a different picture in advertorials,” wrote Supran and Oreskes.
—With assistance from Rakteem Katakey.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=119457969&vname=dennotallissues&fn=119457969&jd=119457969
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