Preview Newsletter
ACC PM 2/10/17
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Pruitt Hosts Industry Leaders to Talk Rule Rollbacks
Oct 2, 2017 | E&E Climatewire
By Robin Bravender
U.S. EPA Administrator Scott Pruitt will host leaders from industry groups representing major sources of greenhouse gas emissions tomorrow to discuss reducing "unnecessary regulatory burden." -
Warning: Too Many Warning Signs Are Bad for Your Health
Oct 2, 2017 | The Los Angeles Times
By The Editorial Board
Starbucks, Whole Foods and about 80 other places in California that sell coffee may soon be forced to put warning labels on grande lattes and coffee bean packages to alert consumers that the product within contains acrylamide, a chemical that may be carcinogenic. -
EPA Allows Samsung Austin Semiconductor to Delist Former ‘Hazardous Waste’
Oct 2, 2017 | Environmental Leader
By Jennifer Hermes
Samsung Austin Semiconductor no longer needs to consider copper filter cake as hazardous waste and no longer needs to follow the requirements of hazardous waste regulations for that substance, thanks to a new ruling from the EPA. -
Businesses 'Need to Speak up' for a Better Brexit
Oct 2, 2017 | Chemical Watch
By Luke Buxton
The UK chemicals industry needs to unite and make its voice heard to ensure the best possible regulatory scenario after the country withdraws from the EU, a recent Brexit conference has heard. -
Zinke Champions Oil and Gas During Clean Energy Week
Oct 2, 2017 | E&E Energywire
By Pamela King
The head of the Interior Department opened and closed National Clean Energy Week by promoting fossil fuel development on public lands. -
Panelists Warn More Challenges Ahead for NatGas Pipeline Projects
Oct 2, 2017 | Natural Gas intelligence
By Jamison Cocklin
Environmental groups opposed to fossil fuel extraction and states that have taken a stand against the oil and natural gas industry are only likely to increase their efforts going forward, despite a series of recent setbacks for their cause at FERC, panelists said at Shale Insight in Pittsburgh last week. -
Tribal Issues Absent From Court's Fracking Rule Decision
Oct 2, 2017 | E&E Energywire
By Ellen M. Gilmer
When a federal court issued a long-awaited decision late last month on Obama-era hydraulic fracturing standards, lawyers for the Ute Indian Tribe saw one thing missing: their entire argument. -
Neighbors of Chemical Dump Report Cancer, Thyroid Problems
Oct 2, 2017 | E&E Greenwire
Neighbors of an old tannery dump site in Belmont, Mich., have reported cancer and thyroid problems, and tests of their wells have shown elevated levels of toxic chemicals. -
Hauling Oil by Rail's Not Dead Yet
Oct 2, 2017 | E&E Energywire
By Nathanial Gronewold
A team at the Energy Policy Institute at the University of Chicago found that key pipeline projects would have been even larger were it not for the lingering competition posed by railroads. The research findings were published as a working paper by the National Bureau of Economic Research. -
Smart Rail Policy Leads to Private Spending, Public Benefits
Oct 2, 2017 | The Orlando Sentinel
By Mike Miller
While private funding is a novel concept for high-speed rail, it is the norm for the other side of rail — Florida’s freight railroads. Each year, freight rail carriers like Jacksonville-based CSX spend billions to maintain and grow the 140,000-mile rail network. The estimate for 2017 is $22 billion in private capital, not taxpayer dollars — some $60 million each day. -
(ACC Mentioned) Justices Wade Into Water Rule, Show Interest in Va. Mining
Oct 2, 2017 | E&E Greenwire
By Amanda Reilly
The Supreme Court today asked for the Trump administration's views on Virginia's moratorium on uranium mining, a sign that justices are interested in a mining company's plea to overturn the ban. -
Premature Circular Economy Threatens Detox Aims, Says Greenpeace
Oct 2, 2017 | Chemical Watch
By Tammy Lovell
Environmental NGO, Greenpeace, has warned that its Detox campaign efforts could be ruined by a premature circular economy. -
Poll: Most Americans Want Government to Fight Climate Change
Oct 2, 2017 | The Hill - E2 Wire
By Timothy Cama
More than 6 in 10 Americans believe that climate change is a problem that the federal government needs to address, according to a new poll. -
Environmentalists Fault EPA's Defense of Boiler MACT
Oct 2, 2017 | Inside EPA
Environmentalists in a supplemental legal filing are again faulting the agency's explanation of its use of carbon monoxide (CO) as a “surrogate” for reducing toxics pollutants from boilers, after EPA attempted to further clarify its position in response to questions from federal appeals court judges at oral argument.
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Pruitt Hosts Industry Leaders to Talk Rule Rollbacks
Oct 2, 2017 | E&E Climatewire
By Robin Bravender
U.S. EPA Administrator Scott Pruitt will host leaders from industry groups representing major sources of greenhouse gas emissions tomorrow to discuss reducing "unnecessary regulatory burden."
The agency is formally kicking off its new "Smart Sectors" effort tomorrow, according to EPA spokeswoman Liz Bowman. It comes as the White House is touting regulatory rollbacks this week, beginning with a speech today by President Trump about his efforts to eliminate federal rules. EPA is also preparing to announce its plans to repeal the Clean Power Plan, the Obama administration's signature climate rule.
The EPA Smart Sectors initiative is intended to "facilitate meaningful collaboration with regulated sectors, sensible policies to improve environmental outcomes, and better EPA practices and streamlined operations," Bowman said.
She added, "EPA is expecting representation from a wide range of American businesses, representing sectors from across our economy," at tomorrow's meeting.
EPA identified a series of industries to be part of the effort in a Federal Register notice published last month (Greenwire, Sept. 25).
Representatives from those industries are expected to attend the meeting tomorrow. The industries are aerospace, agriculture, automotive, cement and concrete, chemical manufacturing, construction, electronics and technology, forestry and paper products, iron and steel, mining, oil and gas, ports and marine, and utilities and power generation.
EPA said those industries were selected "based on each sector's potential to improve the environment and public health."
Industry groups are looking forward to telling EPA officials what they want.
"We welcome the opportunity to explain how long-term, capital-intensive operations like ours — which require regulatory predictability — can be carefully aligned with important agency objectives for ensuring health and environmental protection," National Mining Association CEO Hal Quinn said in a statement.
"Regulatory policies will be more effective when they are informed by actual conditions in regulated sectors," Quinn said.
Environmentalists say the effort is more evidence that Pruitt is too cozy with industry interests.
"Administrator Pruitt's latest initiative shows, yet again, his priorities are rolling back health and environmental protections and appeasing corporations. For him, EPA's actual mission is perfunctory afterthought; his political agenda is serving industry's wishes," said John Walke, clean air director at the Natural Resources Defense Council.
"When will [the] administrator invite in asthma sufferers, Flint, Mich., residents, doctors and climate scientists to explain how he will deliver on the law's promise of clean air and safe water for all Americans?" Walke said.
The Smart Sectors effort is coming out of EPA's policy office, run by Samantha Dravis. She was formerly policy director and general counsel at the Republican Attorneys General Association, where she worked with Pruitt during his tenure as Oklahoma's attorney general. She has launched a broad restructuring of the agency's policy shop (Greenwire, Sept. 7).
An EPA contact for the program, according to the Federal Register notice, is Daisy Letendre, a senior adviser for policy and communications in the policy shop. Letendre was previously communications director for Sen. Jim Inhofe (R-Okla.). She was communications director for the Senate Environment and Public Works Committee when Inhofe was chairman of that panel.
https://www.eenews.net/climatewire/2017/10/02/stories/1060062271
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Warning: Too Many Warning Signs Are Bad for Your Health
Oct 2, 2017 | The Los Angeles Times
By The Editorial Board
Starbucks, Whole Foods and about 80 other places in California that sell coffee may soon be forced to put warning labels on grande lattes and coffee bean packages to alert consumers that the product within contains acrylamide, a chemical that may be carcinogenic.
Wait a minute. Coffee causes cancer? Actually, research increasingly points to the opposite conclusion. Two large studies published earlier this year in the Annals of Internal Medicine found compelling indications that drinking coffee protects against heart disease, a number of cancers and other common ailments. Furthermore, researchers found that higher coffee consumption was associated with a lower risk of premature death. Maybe it has to do with the antioxidants present in a cup of joe that help the body heal itself, or maybe it's some other properties of this complex brew.
But that doesn't matter under Proposition 65. Formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, it requires businesses with 10 or more employees to warn the people when they may be exposed to any of about 850 chemicals that are confirmed or suspected carcinogens, regardless of whether that particular exposure might be dangerous.
Starbucks and some of the other businesses that were sued under the law have already put up the warnings signs the law requires, even though the case is still being argued in a Los Angeles courtroom. Consumers who pause to read the signs might reasonably conclude that their morning fix could harm or even kill them. But Proposition 65 warnings have become such a common sight in the Golden State — in parking lots, hotels, office buildings, amusement parks and gas stations, to name a few places — that they're not so attention-grabbing any more.
This defeats the purpose of Proposition 65, which was conceived as a way to alert consumers to when they may be exposed to lead and other dangerous chemicals — and spur companies to use fewer of them. The lawsuits authorized by the law, however, have prompted businesses to post prophylactic warnings regardless of the severity of the risk. And the signs they post don't provide the context to help people make educated decisions about the risk they face. Many don't even identify which chemical or chemicals are at issue.
State regulators are updating the Proposition 65 signs to offer more information to consumers, including the identity of at least one of the chemicals present. Still, the update won't fix the larger problem of having so many warnings posted that consumers have trouble telling large risks from small ones.
If the coffee industry loses this legal fight, and it easily could, it would mean countless additional warnings crowding the public space. And to what end? Removing acrylamide, which is produced when coffee is roasted, isn't a viable option at the moment. Nor does it seem necessary yet — the cancer jury is still out on acrylamide, which also turns up when potatoes are fried and toast is burned.
Dangerous chemicals are so widespread, it's impossible to conduct a normal life without encountering them. This is why it is important to warn consumers about serious health risks, not merely conjectural ones. Proposition 65 is not accomplishing that, and by rendering people numb to the warnings, it may in fact be doing more harm than good.
The prospect that warnings might be added to every cup of coffee seemed like a joke back in 1986, when opponents of the proposal touted its potential misuse. We pooh-poohed those claims at the time, even though we opposed the initiative as too inflexible.
"To be sure, the potential problems would not approach the grossly exaggerated levels predicted by the anti-Proposition 65 campaign, led by oil and chemical companies and the agriculture industry," we wrote. "Passage of Proposition 65 will not lead to the banning of ordinary table salt or require warning labels on every apple sold or cup of coffee served in California."
The fact that the most outlandish prediction may now come true only underscores the need for fixing or replacing this law.
http://beta.latimes.com/opinion/editorials/la-ed-proposition-65-warning-coffee-20170930-story.html
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EPA Allows Samsung Austin Semiconductor to Delist Former ‘Hazardous Waste’
Oct 2, 2017 | Environmental Leader
By Jennifer Hermes
Samsung Austin Semiconductor no longer needs to consider copper filter cake as hazardous waste and no longer needs to follow the requirements of hazardous waste regulations for that substance, thanks to a new ruling from the EPA. This final rule responds to the petition submitted by Samsung to the EPA to have the copper filter cake from the electroplating process delisted from the definition of a hazardous waste.
Copper filter cake is listed as F006, wastewater treatment sludges from electroplating operations, and is made up of cadmium, hexavalent chromium, nickel, and cyanide (complexed). After analysis and evaluation of comments submitted by the public, the EPA concluded that the petitioned wastes are not hazardous waste when disposed of in Subtitle D landfills. This exclusion applies to the copper filter cake generated specifically at Samsung’s Austin, Texas, facility.
The EPA rule, however, imposes testing conditions to ensure that the future-generated wastes remain qualified for delisting.
To support its petition to the EPA, Samsung Austin Semiconductor submitted historical information on waste generation and management practices, and analytical results from eight samples for total and TCLP concentrations of compounds of concern.
To change rules such as the above, petitioners must provide sufficient information to EPA to allow the organization to determine that the waste to be excluded does not meet any of the criteria under which the waste was originally listed as hazardous.
https://www.environmentalleader.com/2017/10/174462/
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Businesses 'Need to Speak up' for a Better Brexit
Oct 2, 2017 | Chemical Watch
By Luke Buxton
The UK chemicals industry needs to unite and make its voice heard to ensure the best possible regulatory scenario after the country withdraws from the EU, a recent Brexit conference has heard.
Speaking at the event, organised by Chemical Watch, trade body techUK and NGO CHEM Trust on 29 September in London, the latter’s trustee Nigel Haigh said industry has not publicly spoken of the benefits of REACH and that "we must leap outside our box" and make the agenda part of public discourse.
He urged the audience – largely comprised of SMEs but also consultancies, NGOs and trade associations – to "proclaim the importance of REACH".
Earlier in September, the heads of the Chemical Business Association and the Chemical Industries Association urged the government to work to ensure the UK is aligned with REACH.
Mr Haigh said at the conference the CIA had "finally committed" to REACH 'warts and all' and now, he added, it needs to "say out loud, so public and political parties can hear the message".
In the run up to the referendum in June 2016, businesses "campaigned hard" to stay in the EU, techUK’s Susanne Baker said. Despite that, the government "didn’t listen" and mainstream media has to date provided inadequate coverage of the chemicals industry’s concerns. Media speaks directly to companies rather than trade associations, she said, and it is "a struggle to get companies to step up and say ‘this is a problem for my business’". They need to "make their voices heard", she added.
The CBA is trying to motivate its members to talk about what they need, technical director Douglas Leech said. Some members, he added, are "not willing to give the hard facts" for fear of potential damage to their share price, for instance.
Meanwhile, the CIA’s chief executive Steve Elliott said that in the immediate aftermath of the referendum "there was a feeling that perhaps we can get rid of the worst aspects of EU bureaucracy". However, as uncertainty and doubt has grown, there is now "0% appetite for leaving the EU".
There is a sense of urgency, he added, to make the industry "visible and as connected as possible with negotiations in mind". He said it was better to take a united approach rather than engaging in sector by sector talks.
Stakeholder consultations
In her keynote address, Mary Creagh, MP and chair of the House of Commons Environmental Audit Committee, said people should visit their local MPs to raise the issue of the potential negative impacts of Brexit on UK chemicals regulation.
At the beginning of the year, the committee launched its second inquiry into the future of environmental law and policy with a focus on REACH. Ms Creagh told the conference that, while the government had responded to its April 2017 report on the inquiry, it "did not answer" the main points the committee had raised. And it did not "use the opportunity" to plan how to regulate the chemicals sector after Brexit, she said.
In light of the government’s reply, she told the audience that the committee is now seeking further views from stakeholders by 20 October.
Also at the conference, CHEM Trust’s Michael Warhurst presented the results of the NGO’s joint UK poll, which found that almost two-thirds of British citizens believe that there should be no reduction in regulatory standards after Brexit.
The poll, which was also conducted on behalf of international corporate watchdog SumOfUs, revealed that 84% of remain and 83% of leave voters support a "strong regulation" of chemicals, with a need for hazardous substances to be safely substituted.
https://chemicalwatch.com/59663/businesses-need-to-speak-up-for-a-better-brexit
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Zinke Champions Oil and Gas During Clean Energy Week
Oct 2, 2017 | E&E Energywire
By Pamela King
The head of the Interior Department opened and closed National Clean Energy Week by promoting fossil fuel development on public lands.
In a Friday speech to the Heritage Foundation on "energy dominance," Secretary Ryan Zinke touted oil and gas operators' progress on hydraulic fracturing. The industry's developments are welcome news, the Montanan said, noting his upbringing in the foothills of Glacier National Park.
"Nobody loves our public lands more than I do. ... That's why I'm glad to see advances in new technology," Zinke said. "They're opening up new possibilities that didn't exist before. Directional drilling and GPS technology are allowing us to do things that we never thought possible.
"I'm a former geologist," he added. "I say former because when I went to school, we were taught that we were going to be out of oil in 2003. There was peak oil. That's not possible with fracking.
"We have better computing. We have better precision, and we can do it right. I've seen fracking improve for higher pressures and temperatures," Zinke said. "By producing greater energy yields, the process is safer."
Zinke's Friday exposition on fracking followed uncontextualized remarks on the oil and gas extraction process during a National Petroleum Council meeting last week.
"Fracking is proof that God's got a good sense of humor and he loves us," he said.
During those two appearances — which were not billed as Clean Energy Week events — Zinke had less to say about renewable energy.
There is "progress being made" on resources like solar, wind and hydropower, he said Friday. But until there's a breakthrough on battery storage technology, the United States must continue to rely on traditional energy sources, Zinke said.
"We're probably going to be this year No. 1 on oil and gas," Zinke said, reiterating a claim he made earlier in the week before the National Petroleum Council (Energywire, Sept. 26). "And next year, we will likely be a net exporter of liquid natural gas."
The Trump administration's laser focus on oil, gas and coal is attributable to the Obama administration's attempt to boost alternative energy technologies, said Western Energy Alliance President Kathleen Sgamma.
"Despite all the subsidies and favoritism shown to wind and solar, they still provide a very small fraction of American energy because they're intermittent and uneconomic," she said. "If we as a country are going to unleash American energy dominance and sustain real economic growth, it's going to be from affordable, reliable energy sources like oil and gas that provide the majority of American and global energy needs, 24/7.
"Appropriately designated non-park, non-wilderness federal lands can contribute significantly to the nation's energy portfolio, and we welcome Secretary Zinke's policy direction," Sgamma said.
The Center for American Progress (CAP) said the secretary is improperly increasing the oil, gas and coal industries' access to federal lands.
"While the speech was short on specifics and played fast and loose with the facts, Zinke did confirm that we have entered an era of corporate control, where the relationship between industry and regulator is inverted," CAP said in response to Zinke's Heritage Foundation speech. "In his words today and in his actions over the past nine months, Secretary Zinke has made clear that his time, his agenda, and the resources he is entrusted with protecting are all up for sale."
The Wilderness Society questioned why Zinke didn't see more potential for solar, given its increasing share in the energy mix.
"Overall, the wind, solar and geothermal projects approved to date on public lands have the potential to power 7 million homes when built, and Secretary Zinke should continue to invest in advancing responsible renewables development," said Alex Daue, assistant director of the Wilderness Society's energy and climate campaign. "As a nation, we should continue to pursue renewable energy at all scales, from rooftop solar and community solar gardens to carefully sited large-scale projects."
Zinke fielded criticism last week for appearing to suggest that large-scale solar projects are inappropriate for federal lands (Greenwire, Sept. 28).
"The Interior Department and Secretary Zinke are clearly out of touch with the desires of the American people and the reality that public lands are already and should continue playing an important role in our clean energy economy," Daue said.
Solar Energy Industries Association President and CEO Abigail Ross Hopper said she looks forward to working with Zinke and Energy Secretary Rick Perry on solar solutions.
"The beauty of solar energy is it can be deployed in multiple ways," she said. "From rooftop panels to large-scale installations owned by utilities, there is room for all solar energy, and each one plays an important role in the diversification of our nation's electricity mix."
https://www.eenews.net/energywire/2017/10/02/stories/1060062269
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Panelists Warn More Challenges Ahead for NatGas Pipeline Projects
Oct 2, 2017 | Natural Gas intelligence
By Jamison Cocklin
Environmental groups opposed to fossil fuel extraction and states that have taken a stand against the oil and natural gas industry are only likely to increase their efforts going forward, despite a series of recent setbacks for their cause at FERC, panelists said at Shale Insight in Pittsburgh last week.
The Federal Energy Regulatory Commission issued a draftsupplemental environmental impact statement (EIS) on Wednesday for the Sabal Trail Pipeline and two related expansions. The Commission’s EIS addresses a federal court’s ruling that it failed to adequately analyze the downstream greenhouse gas emissions from the pipelines, but refused to use the Social Cost of Carbon methodology that environmental groups want incorporated in FERC reviews.
“Environmental groups have already latched onto this Sabal Trail decision and they’ve begun relying on it in their filings to FERC,” said Anthony Holtzman, a partner and energy attorney at K&L Gates LLP, who joined a panel on pipeline disputes during the conference. “They’re asserting that the agency has improperly issued a certificate for the Atlantic Sunrise project. You can rest assured, my friends, that environmental groups will continue to rely on this decision to contest projects and FERC decisions in the future.”
Since the August ruling on Sabal Trail, the Sierra Club has referenced the decision in its opposition to not just the Atlantic Sunrise project, but to the Mountain Valley Pipeline, Nexus Gas Transmission pipeline and the Atlantic Coast Pipeline as well.
FERC restored its quorum after six months in August after two of President Trump’s nominees were confirmed and sworn-in. Two others are soon expected to join the Commission, giving it a full five members and a Republican majority. Soon after it got back to work, commissioners weighed-in officially on New York’s stance against natural gas, issuing an order that found the state waived its authority to issue a decision on Millennium Pipeline Co. LLC’s water quality certification (WQC) for the Valley Lateral Project because it took too long.
The order reversed the New York State Department of Environmental Conservation’s (DEC) Aug. 30 denial of the WQC, which came nearly two years after Millennium first filed its application. Other projects, such as the Constitution Pipeline and the Northern Accessexpansion project, which were also denied WQC by New York, have argued for a waiver before FERC and in court. Environmentalists have built on the DEC’s moves, by trying to weaponize WQC and influence approvals in other states, which issue them under the federal Clean Water Act.
Holtzman said the industry should expect more of it, noting that the DEC is likely to contest FERC’s determination in court. The agency said at the time the Commission waived its authority that it was considering its legal options.
Half a year spent without a quorum at FERC, regulatory delays and outright denials for pipeline projects have investors second guessing the midstream space, said Katie Bays, a senior energy analyst at Height Securities.
“The promise of energy infrastructure hangs on the regulatory risk,” she told the audience. “If you can get comfortable with a project -- that it’s going to make it through these kinds of hurdles -- then you can get excited. Unless they can find that comfort, a lot of clients are not getting involved. Right now, I think caution is the primary feeling that I get.”
She said investors have also been impatient with FERC’s slow action on natural gas pipelines that have yet to be approved, even though there’s nothing unusual about the pace at which the Commission has resumed its work.
Kinder Morgan Inc. spokesman Allen Fore, who sat on the panel as well, said the industry should take a stronger hand in allaying those kinds of concerns and wrestling the narrative back from environmental groups. He noted that it’s crucial for companies to get more involved in the permitting process at all levels and get more representatives out in the field to address local concerns in a timely manner.
Fore said the industry is only as good as its “least successful company.” He alluded to the troubles Energy Transfer Partners LP has had in Ohio, where it’s facing a steep fine for a major spill of drilling mud during construction of its Rover Pipeline earlier this year.
“The accountability of companies to do the right thing doesn’t affect one project, it affects the entire industry,” he said. “We’re dealing with this in Ohio right now. Another pipeline company that’s building very near us has had serious issues with the [Ohio Environmental Protection Agency] -- serious issues. We have not, but we’re building in some of these places. How do you think that affects us?”
http://www.naturalgasintel.com/articles/111922-panelists-warn-more-challenges-ahead-for-natgas-pipeline-projects
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Tribal Issues Absent From Court's Fracking Rule Decision
Oct 2, 2017 | E&E Energywire
By Ellen M. Gilmer
When a federal court issued a long-awaited decision late last month on Obama-era hydraulic fracturing standards, lawyers for the Ute Indian Tribe saw one thing missing: their entire argument.
The ruling from the 10th U.S. Circuit Court of Appeals skips discussion of the Utes' tribal sovereignty claims, focusing instead on the judges' conclusion that litigation over the fracking rule should be scrapped in light of the Trump administration's efforts to revoke the measure.
"Given that we are vacating the district court's opinion and dismissing the underlying action, we need not address the additional arguments raised by the Ute Indian Tribe challenging the district court's ruling as regards the Tribe," wrote Judge Mary Beck Briscoe.
The decision to pass over tribal issues was a blow to the Utes, a northeastern Utah tribe that has pushed for years for a court ruling that blocks the federal government from treating American Indian lands the same as public lands.
"We are disappointed they did not get to it today because we had clearly shown the flaws in the United States' paternalistic position," Fredericks Peebles & Morgan LLP attorney Jeffrey Rasmussen said after the Sept. 21 decision.
The Utes and other tribes have long opposed the way the Obama administration's fracking rule was designed to apply uniformly to tribal lands and public lands. Tribal advocates say the approach violates federal law and undermines the efforts individual tribes have taken to oversee oil and gas development on their lands. Dozens of tribes weighed in during the rulemaking process, and the Utes eventually took the Bureau of Land Management to court (Energywire, July 11, 2016).
Lawyers for the Utes say BLM cannot make rules for tribal lands. They say the agency was created to manage public lands while the Bureau of Indian Affairs carries out some oversight of tribal lands. BIA sometimes adopts BLM rules for itself and delegates enforcement authority back to BLM. But the lawyers say BLM has enlarged that enforcement authority to justify rulemaking power that Congress never intended.
Government lawyers have maintained that BLM has "broad regulatory jurisdiction" over tribal oil and gas operations and is entitled to deference in how it exercises that authority.
Fighting for attention
During more than two years of litigation, the Utes' arguments have often taken a backseat to higher-profile concerns from several Western states that say the regulation treads on their turf, plus industry groups that say the measure will put some drillers out of business.
The Utes got their biggest legal nod in late 2015 when the U.S. District Court for the District of Wyoming issued a preliminary injunction freezing the fracking rule. Judge Scott Skavdahl devoted several pages of his opinion to the tribe's complaints, concluding that BLM failed to sufficiently involve tribes in the rulemaking process.
Though the agency held regional meetings with tribes before finalizing the fracking rule, Skavdahl agreed with the Utes' assertion that the forums were merely informational sessions that did not give the Indian nations a chance to actually shape the regulation. The Utes hailed the decision at the time as gratification after years of raising their concerns (Energywire, Oct. 5, 2015).
The district court's final decision striking down the fracking rule, however, said nothing about the Utes' arguments; it focused on state challengers' claim that the federal government lacks authority over fracking at all. And the 2015 preliminary injunction decision, which had been appealed by the U.S. government, was ultimately vacated after the appeals court found the case to be moot. Tribal leaders celebrated the rule's defeat but privately lamented the lack of new case law for American Indian issues.
The Utes are left with that same feeling after the recent 10th Circuit decision.
The complex ruling dismissed litigation over the fracking rule in light of Trump administration efforts to undo the regulation but also scrapped the district court's decision that struck down the rule. The Obama-era measures will take effect once the 10th Circuit issues a formal mandate in the case — although that process could be sidelined if parties ask the court to reconsider the decision (Energywire, Sept. 22).
The 10th Circuit didn't delve into the core issues for any of the parties, but Briscoe's opinion, joined by Judge Jerome Holmes, included discussion of whether the question of BLM authority over fracking was worth settling. They concluded that the issue was "unfit for judicial review" and did not see a need to reach the Utes' separate arguments about whether BLM has rulemaking authority over tribal lands.
'They want some certainty'
Rasmussen, the tribe's lawyer, says the court should have taken the extra step because the tribal issues are distinct from the public lands issues.
The absence of tribal issues in the decision was all the more frustrating, he said, because the court seemed receptive to the Utes' position during oral arguments in July. Judge Harris Hartz was particularly interested, criticizing government and environmental lawyers for skipping over the tribe's claims in their own briefs to the 10th Circuit.
"That's frustrating for us that the tribe has put a fair amount of work into this case and into this issue, and we feel like we defeated the United States on the substance," Rasmussen said. "It's frustrating to have done all that and then have it be, 'Well, maybe someday in the future you'll be able to get to that issue, but we're not going to get to it now.'"
Hartz maintained that position in last month's decision, authoring a partial dissent to explain that he would have decided the Utes' issues because the other parties failed to push back during the appeal.
"The Tribe has adequately raised the issues specific to it both in district court and in this court," he wrote. "Yet the other parties have failed to challenge the Tribe's reasoning. I would treat that failure as a waiver and affirm judgment for the Tribe with respect to Indian lands. Resolving that matter would entail no waste of judicial resources."
But the dissent is little comfort to the tribe, which says it now cannot offer certainty to oil and gas operators about future regulation.
"It doesn't provide us the certainty we would like to have," Rasmussen said. "That was one of the things we were trying to get is some clarity because the amounts that companies have to invest in drilling, they want some certainty. We thought we'd get that, and we thought we deserved that."
The legal battle is likely not over. Rasmussen said the tribe plans to ask the 10th Circuit to reconsider its decision. Other parties are also expected to challenge the ruling and may even ask the Supreme Court to take their case if necessary.
If the question of BLM rulemaking authority for tribal lands remains unsettled at that point, the Utes could also challenge the Trump administration's eventual rollback of the fracking rule — arguing that even the revocation is unlawful with respect to tribal lands because BLM lacks any rulemaking authority in that area.
Other tribes that favor BLM's fracking rule for its environmental protections, meanwhile, may end up challenging the rollback on other grounds — pushing to reinstate the Obama standards.
https://www.eenews.net/energywire/2017/10/02/stories/1060062247
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Neighbors of Chemical Dump Report Cancer, Thyroid Problems
Oct 2, 2017 | E&E Greenwire
Neighbors of an old tannery dump site in Belmont, Mich., have reported cancer and thyroid problems, and tests of their wells have shown elevated levels of toxic chemicals.
Wolverine World Wide Inc., a global footwear company that makes Hush Puppies, dumped hazardous waste sludge from its tannery at the site throughout the 1960s.
Most contaminated is the well of Sandy Wynn-Stelt, whose husband died in March 2016 of liver cancer at age 61. The Michigan Department of Environmental Quality said state toxicologists had never seen such high levels of perfluoroctanesulfonic acid (PFOS) and perfluoroctanoic acid (PFOA) in a private drinking water well.
Local and state officials started asking to test the neighborhood well water in July this year.
"You lose your husband and it's the worst thing on Earth," Wynn-Stelt said. "And in July, I get these government people walking up my driveway saying, 'We think you've got poisoned groundwater.'"
Wolverine said in a statement that it understands residents' "frustration and anxiety."
"At the same time, there are no simple solutions or shortcuts for determining exactly what is happening at these sites or for setting the most effective path forward," it said. "On multiple occasions, including [a] recent town hall meeting, Wolverine has stressed its commitment to thorough testing and to ensuring residents have water they can trust during this process and into the future" (Garret Ellison, Grand Rapids Press, Oct. 1). — MJ
https://www.eenews.net/greenwire/2017/10/02/stories/1060062277
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Hauling Oil by Rail's Not Dead Yet
Oct 2, 2017 | E&E Energywire
By Nathanial Gronewold
Shipping crude by rail may be down, but it's not out.
Lower oil prices and new pipelines have oil producers turning away from the pricier option of delivering their crude by railroad. But a new energy economics study finds that oil by rail remains resilient and is likely a new permanent feature of the North American petroleum economy.
A team at the Energy Policy Institute at the University of Chicago found that key pipeline projects would have been even larger were it not for the lingering competition posed by railroads. The research findings were published as a working paper by the National Bureau of Economic Research.
For the Dakota Access pipeline, authors Ryan Kellogg and Thomas Covert conclude that its capacity would have been up to 64,000 barrels a day larger than the actual maximum capacity the line was built to carry, about 470,000 barrels a day. Pipelines would have been even more competitive had regulation been in place to compensate for the added air pollution caused by trains; since there are no such regulations, rail's resilience endures.
In an interview, Kellogg explained that although rail is expensive, oil producers like the flexibility the option provides them. Shippers can direct cargoes to new market hubs depending on what they find most advantageous given the dynamics of market conditions.
Oil companies also like that they don't have to pay the railroads anything when they're not using them, he notes. To pay for pipeline projects, oil companies must enter into long-term supply contracts that guarantee the pipelines revenue whether oil flows down the line or not.
"If you're only looking at current conditions, rail isn't competitive at the moment, and you can see it in the volumes," Kellogg said. "It does sort of underscore what the true value of rail is, which is that it's flexible enough to be turned on and turned off when the market looks the way it does right now."
Kellogg said there is no particular per-barrel crude price point at which rail looks enticing enough to send oil companies rushing back to using it in a big way. Many factors are at play, including production costs, the location of the field, proximity to markets and the fiscal health of the producer.
But the study predicts that oil by rail is a new reality that won't go away anytime soon. Prior to the shale oil boom, the United States' railroads carried virtually no crude. Rail shipment volumes have fallen with the lower oil price and addition of new pipelines, but Kellogg sees railroads continuing to carve out a share of the market for delivering liquid energy.
"Given current pipeline capacity, if the oil price does rebound and get high enough, you are going to see rail start to come back," said Kellogg. "What that's going to hinge on in the future is as oil prices come up, just how quickly can production respond, and how much slack is there in that system for production to start increasing again before drilling costs start to go up?"
https://www.eenews.net/energywire/2017/10/02/stories/1060062199
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Smart Rail Policy Leads to Private Spending, Public Benefits
Oct 2, 2017 | The Orlando Sentinel
By Mike Miller
Anyone paying attention to infrastructure in Florida is likely familiar with All Aboard Florida’s Brightline project — an intercity, high-speed rail system that will open later this year and eventually extend from Miami to Orlando. Brightline is special among other passenger-rail systems around the nation because it is privately funded, built and operated. Referring to this, a column headline in The Wall Street Journal recently said Brightline “may be pointing to the way of the future.”
While private funding is a novel concept for high-speed rail, it is the norm for the other side of rail — Florida’s freight railroads. Each year, freight rail carriers like Jacksonville-based CSX spend billions to maintain and grow the 140,000-mile rail network. The estimate for 2017 is $22 billion in private capital, not taxpayer dollars — some $60 million each day.
Trains help power the economy, generating 40 percent of intercity freight volume, more than any other mode, and one-third of U.S. exports. They connect Florida ports, businesses and manufacturers to the rest of the country and world, in addition to delivering for consumers every day.
Most recently, CSX helped us get back on our feet following the devastation of Hurricane Irma, restoring its rail service in and out of northern Florida within 24 hours and to the whole state within a week. This response was a massive undertaking, and involved clearing nearly 8,000 fallen trees from obstructed tracks and deploying hundreds of generators to operate signals and equipment in areas with power outages.
Maximizing the efficiency of this nationwide network is not cheap. Privately owned freight railroads typically need to reinvest in their infrastructure at six times the rate of the average manufacturer. In fact, over the past several years, they have spent about $25 billion annually to upgrade and expand track and structures, install more-efficient locomotives and research new technologies that enhance safety and efficiency, among other improvements.
This success story — rail’s productivity, efficiency — is rooted in sound public policy and balanced economic regulations that free railroads to run like other businesses. Before this was the norm, prior to the 1980 Staggers Act, government intrusion into the railroad business, like rate and schedule controls, had driven many rail carriers into bankruptcy.
Unfortunately, today’s smart rail regulations are at risk because of several proposals currently before the U.S. Surface Transportation Board. One proposal, “forced access,” would compel railroads to open their lines to competitors at rates and schedules determined by the government. Another would reregulate certain commodities.
Policymakers would be wise to avoid a return to the pre-Staggers era, when railroads couldn’t afford to invest. Freight rail spending today is key to our economy. For example, enhancing rail operations here and across the country helps make U.S. ports “big ship ready” for meeting the increased demand of an expanded Panama Canal.
While Brightline is providing a path forward for privately funded high-speed rail, America’s freight railroads are a longstanding example of this model, where private investments create public benefits — for businesses, consumers and the economy. Let’s avoid upending freight rail’s successes with overregulation.
http://www.orlandosentinel.com/opinion/os-ed-brightline-rail-private-funds-public-benefit-20170929-story.html
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(ACC Mentioned) Justices Wade Into Water Rule, Show Interest in Va. Mining
Oct 2, 2017 | E&E Greenwire
By Amanda Reilly
The Supreme Court today asked for the Trump administration's views on Virginia's moratorium on uranium mining, a sign that justices are interested in a mining company's plea to overturn the ban.
But the high court otherwise declined to add several other environmental and energy petitions, including two fisheries cases, to its docket. They were among a long list of denials issued as justices began their October 2017 term.
This Supreme Court term promises major battles over controversial topics, including partisan gerrymandering, cellphone privacy and whether a cake shop can decline to service a same-sex wedding. The court may also weigh President Trump's immigration executive orders.
But the environmental law docket is so far relatively light. Headlining it is a fight over the correct legal venue for challenging the Obama administration's Clean Water Rule. Justices are scheduled to hear oral arguments next week in the case.
In the mining case, Virginia Uranium Inc. is appealing a recent decision by the 4th U.S. Circuit Court of Appeals upholding the state's long-standing moratorium on uranium extraction. Justices asked the solicitor general to file briefs responding to the company's petition.
The central legal question in the case is whether the federal Atomic Energy Act pre-empts Virginia's law. Virginia Uranium argues the state has taken on the regulation of radiological safety hazards resulting from activities — the milling of uranium and management of tailings — that are under the purview of the Nuclear Regulatory Commission.
"The commonwealth's prohibition of uranium development transgressed the limits imposed by the AEA," the company said in court documents.
The 4th Circuit in February issued a split decision, finding that state leaders cited as defendants were immune from litigation and that Virginia was the "paramount proprietor" of minerals within its jurisdiction (Greenwire, Feb. 21).Another mining ban
This is the second time this year that justices have asked the Trump administration to weigh in on a state mining ban. In May, they asked for the solicitor general's views in a case brought by a part-time prospector, Brandon Rinehart, seeking to knock down California's ban of a method of mining gold from streambeds.
Rinehart challenged a 2009 prohibition on suction dredge mining, a practice that involves sucking up sediment from streambeds, running it through a sluice and returning it to the stream.
California criminally prosecuted him for using the practice to mine a claim in Plumas National Forest in the northern part of the state.
The California Supreme Court in August 2016 ruled that the state can ban mining if it wants. The Trump administration has yet to file briefs in the case (Greenwire, May 15).
Rinehart is represented by the conservative law firm Pacific Legal Foundation, which often brings claims to the Supreme Court on behalf of property owners.
While Rinehart's case is pending, justices today declined to hear another PLF case claiming that the North Carolina town of Emerald Isle took the beach in front of a family's house without just compensation. PLF attempted to argue that the town illegally extended the public trust doctrine to the dry beach in front of the home.Fisheries
It takes the votes of four justices to accept a petition. Today they declined hundreds of cases, as is typical at the start of a new term.
Among the denials were Alaska's appeal of a ruling by the 9th U.S. Circuit Court of Appeals requiring NOAA to create a new plan for managing state salmon.
The court found the agency couldn't exclude historical net fishing areas of the Cook Inlet from its fishery management plan (FMP) for salmon.
Alaska, which has long managed salmon in the Cook Inlet, argued the court was wrong because the Magnuson-Stevens Fishery Conservation and Management Act doesn't require the federal government to prepare an FMP for a fishery that doesn't need one.
The Trump administration, though, urged justices to pass on the case, arguing NOAA was "well-equipped" to issue a new FMP that includes Cook Inlet (Greenwire, May 10).
The Supreme Court also declined to revive litigation brought by Northeast fishermen challenging a federal program requiring most groundfish boats to pay for their own at-sea watchdogs.
At issue is NOAA's requirement that, beginning January 2016, fishermen pay for a multimillion-dollar, at-sea monitoring program because of a tight federal budget.
Fishermen who voluntarily joined a "sector" — or a group that shares fish quotas — must have at-sea monitors who tag along on fishing trips to ensure federal rules are followed.
NOAA partially reversed course last year and estimated it would be able to reimburse 85 percent of industry costs in 2016 and 60 percent in 2017.
New Hampshire fisherman David Goethel and Northeast Fishery Sector 13, one of the groundfish sectors, argued in their lawsuit that NOAA essentially made them join a sector by making it the "only viable economic option."
But the 1st U.S. Circuit Court of Appeals dismissed the case, finding that the fishermen had failed to file the lawsuit within a required 30-day period under the Magnuson-Stevens Act. The fishermen told the Supreme Court they "deserve a day in court" (Greenwire, July 13).Other cases
Justices declined to revive a recycling company's claims that Solo Cup Co. and other major manufacturers of polystyrene food service products conspired with the American Chemistry Council to prevent its closed-loop, sustainable recycling method.
The legal question in the case concerned the standard that courts should use when deciding whether to grant summary judgment motions in antitrust cases.
Evergreen Partnering Group Inc. argued that the 1st Circuit, which ruled in favor of the manufacturers, applied the wrong standard based on a "significant misinterpretation" of precedent.
A case brought by Ohio residents over leasing land for oil and gas drilling likewise reached a dead end. The residents argued the Muskingum Watershed Conservancy District illegally leased lands that were to be used solely for recreation, conservation and reservoir development.
They were challenging a 6th U.S. Circuit Court of Appeals decision favoring the watershed district. But the Supreme Court declined to reconsider the ruling.
Justices also brought to a close fishing advocates' attempts to scuttle a federal permit for the closure of Rollover Pass, a man-made channel Texas dug out in 1955 to allow fish and salt water to more easily access the East Bay from the Gulf of Mexico.
On the other hand, a class-action lawsuit against Stream Energy alleging a pyramid scheme will move forward in lower court after the Supreme Court declined to take up the company's appeal of a decision certifying the class.
Stream sells electricity through a multilevel marketing program. The 5th U.S. Circuit Court of Appeals certified a class of 230,000 plaintiffs who say they've collectively lost more than $87 million after signing up as "independent associates" under the company's program.
https://www.eenews.net/greenwire/stories/1060062311/search?keyword=%22american+chemistry+council%22
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Premature Circular Economy Threatens Detox Aims, Says Greenpeace
Oct 2, 2017 | Chemical Watch
By Tammy Lovell
Environmental NGO, Greenpeace, has warned that its Detox campaign efforts could be ruined by a premature circular economy.
Its report Fashion at the crossroads, launched last month, calls for alternatives to the current material-intensive business model and offers a critical response to the circular economy idea promoted by large global brands.
Since 2011, the Greenpeace Detox campaign has been calling on major brands to phase out 11 chemical classes of concern, by 2020. The report says that without eliminating the use and releases of harmful chemicals from production chains, "the circular dream could well become a toxic recirculation nightmare."
It goes on to say that this is also a "prerequisite for high quality circularity, by ensuring that clean materials are available for recycling".
"However, the current rates of excessive production and consumption in the industry as a whole are probably outweighing any gains that are being made," it continues.
Speaking at the launch of the report at Milan Fashion Week, Greenpeace Italy senior corporate strategist, Chiara Campione, said that "an effective six year-long effort to reduce hazardous chemicals from the textile global supply chain could be ruined by a premature circular economy, where recycling happens before detoxing processes and materials occur. While the overall growing intensity of production continues to pose a serious threat to the environment."
She also criticised a report by the Global Fashion Agenda - a sustainability initiative run by the Danish Fashion Institute, which was created by the Danish fashion industry. The Pulse report, which was presented at the Copenhagen Fashion Summit earlier this year, envisions a circular future for the fashion industry.
This she said, would "rely even more on environmentally harmful polyester and still seeks growth in material output without questioning the overproduction, overconsumption and the subsequent decrease in the quality and longevity of our clothes."
Jonas Eder-Hansen, chief content adviser for Global Fashion Agenda, which organised the Copenhagen Fashion Summit, said the Pulse report aimed to "take the pulse on where the industry stands in terms of sustainability along the whole value chain and present a broad landscape of levers for improvement", but did not "dive deep on any of the topics".
He added that the Global Fashion Agenda was working actively on the circular economy through partnerships, including the Ellen MacArthur Foundation’s Circular Fibres Initiative.
"This work encompasses a systemic approach to circularity from a design, reuse and recycling perspective and the primary focus is placed on closing the loop on the fashion industry by finding solutions to tackle textile waste, while being aware that the circular economy agenda is much broader," he said.Industry response
Textiles trade association, Euratex, is collecting a hundred business cases demonstrating the circular economy in textile manufacturing.
Euratex manager of sustainable businesses, Mauro Scalia, told Chemical Watch that the European textile and apparel industry had "several pioneering examples of reusing or recycling materials while guaranteeing safety, both in SMEs and in large companies". This "knowledge and potential shall be scaled up", he added.
A greater demand for recycled materials, he said, would help further research, improvements and lower costs.
He added that "the circular economy is already being addressed by EU authorities and stakeholders; this shall continue, constructively, and we believe that it would benefit from improved test methods and cost-effective detection technologies."
The European Commission has published a roadmap setting out the actions it plans to take, to address the interface between legislation on chemicals, products and waste. This will feed into its plans for a circular economy and the future EU strategy for a non-toxic environment.
https://chemicalwatch.com/59609/premature-circular-economy-threatens-detox-aims-says-greenpeace
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Poll: Most Americans Want Government to Fight Climate Change
Oct 2, 2017 | The Hill - E2 Wire
By Timothy Cama
More than 6 in 10 Americans believe that climate change is a problem that the federal government needs to address, according to a new poll.
The poll, conducted in August by The Associated Press-NORC Center and the Energy Policy Institute at the University of Chicago, found a large majority of Americans in both major parties believe that climate change is happening.
But Americans’ opinions are less clear when it comes to what action they feel should be taken.
Just 51 percent of respondents were willing to pay $1 a month to combat global warming, a figure that dropped to 18 percent when the prospective monthly fee increased to $100.
“These results put the polarized climate debate in sharp relief, but also point to the possibility of a path forward,” Michael Greenstone, director of the Energy Policy Institute, said in a statement accompanying its Monday release.
“Although half of households said they were unwilling to pay anything for a carbon policy in their monthly electricity bills, on average Americans would pay about $30 per month, as a meaningful share of households report that they are willing to pay a substantial amount,” he said.
“So, while the raw economics appears to be less and less of a problem, the open question is whether it is feasible to devise a robust climate policy that accommodates these very divergent viewpoints.”
Opinions were not entirely clear on hot-button climate policy issues, either.
Only 17 percent of respondents said they support fracking. But if the pollster said it would save the respondent significantly on natural gas bill, support averaged 41 percent.
The poll also found that significant numbers of Americans do not have opinions on the Clean Power Plan, the Dakota Access pipeline or the proposed Keystone XL pipeline.
But 41 percent of respondents said they opposed Trump’s plan to repeal the Clean Power Plan, an Obama administration policy meant to reduce carbon emissions from power plants.
http://thehill.com/policy/energy-environment/353417-poll-americans-want-government-to-fight-climate-change
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Environmentalists Fault EPA's Defense of Boiler MACT
Oct 2, 2017 | Inside EPA
Environmentalists in a supplemental legal filing are again faulting the agency's explanation of its use of carbon monoxide (CO) as a “surrogate” for reducing toxics pollutants from boilers, after EPA attempted to further clarify its position in response to questions from federal appeals court judges at oral argument.
At argument Sept. 15 in Sierra Club v. EPA, judges on the U.S. Court of Appeals for the District of Columbia Circuit pressed Department of Justice (DOJ) lawyers on the rationale behind EPA's use of carbon monoxide (CO) threshold to determine whether hazardous air pollutants (HAPs) are sufficiently controlled under EPA's maximum achievable control technology (MACT) rule.
The MACT regulates HAPs from boilers, using CO emissions as a “surrogate” to indicate when air toxics are sufficiently controlled. Judge Nina Pillard called EPA's basis for setting the threshold at 130 parts per million (ppm) a “black box,” prompting DOJ to issue a Sept. 21 supplementary letter to the court explaining the limit.
In that letter, DOJ re-iterated EPA's finding that there is “no further reduction in organic HAP emissions below the threshold CO level.”
However, environmentalists in a Sept. 28 response letter say, “Previously, EPA dismissed this 'apparent breakdown' in the correlation between CO and organic HAPs as a 'difficulty of measuring' organic HAPs at CO levels below 130 ppm 'rather than [] a flaw in the correlation.'”
They add, “Nothing in EPA’s letter explains why EPA now posits a flaw in the correlation and believes that flaw allows it to set unlawful CO standards rather than abandoning CO as a surrogate.”
Environmentalists again challenge EPA's use of CO as a surrogate in principle, even though many legal observers believe that issue was settled in EPA's favor in the court's 2016 ruling in U.S. Sugar Corp., et al,. v. EPA, et al., which the court remanded several emissions limits to the agency for being too weak. The groups argue that EPA must craft MACT standards to reflect the best emissions performance of boilers with respect to individual HAPs -- and not CO.
Finally, environmentalists say DOJ's letter “cites no part of the record where EPA ever claimed boilers emit no organic HAPs when their CO levels are below 130 ppm or that further reductions in organic HAPs are impossible.”
https://insideepa.com/daily-feed/environmentalists-fault-epas-defense-boiler-mact
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