Preview Newsletter
ACC AM 10/17/17
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Slowing Demand Growth to Push Big Oil from Cars to Chemicals
Oct 17, 2017 | BNA Daily Environment Report
By Javier Blas
Global oil demand growth will slow to a crawl and gasoline use will peak within the next decade, prompting the world's biggest energy companies to accelerate the shift to natural gas and chemicals, according to consultant Wood Mackenzie Ltd. -
Trump's EPA Swears Off Settling Lawsuits with Environmentalists
Oct 17, 2017 | BNA Daily Environment Report
By Jennifer A. Dlouhy
The Trump administration moved Oct. 16 to curb settlements with environmentalists, instead vowing to fight cases designed to force the Environmental Protection Agency to take action. -
Pruitt Order Ending 'Sue-And-Settle' Could Increase Litigation, Critics Say
Oct 16, 2017 | Inside EPA
By Dawn Reeves
EPA Administrator Scott Pruitt's new directive ordering the agency to end so-called “sue-and-settle” suits is being met with concern by industry attorneys and skepticism by environmentalists, who say the order could make settlements impossible, even in cases where the agency has a mandatory duty to act, and will likely result in more litigation and court orders providing the agency with less time to act. -
EPA's Pruitt Boosts Industry Role In Negotiations With Green Groups
Oct 16, 2017 | PoliticoPro
By Alex Guillén
Industry groups will soon get a seat at the table when EPA decides how to respond to some lawsuits from environmental groups. -
Nominees Sound Off On Climate, Chemicals; Dems Disappointed
Oct 17, 2017 | E&E Daily
By Corbin Hiar and Sean Reilly
The top Democrat on the Environment and Public Works Committee yesterday slammed four high-profile U.S. EPA nominees for revealing too little about how they'd approach their new jobs. -
(ACC Mentioned) California Requires Disclosure of Cleaning Product Chemicals
Oct 17, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
California edged out New York in becoming the first state to require manufacturers to disclose potentially harmful chemicals in air fresheners, detergents, and other cleaning products. -
UN's Saicm Seeks Stakeholder Input On Knowledge Platform
Oct 17, 2017 | Chemical Watch
The UN's Strategic Approach to International Chemicals Management (Saicm) has launched a stakeholder survey to help in the design of an online knowledge management platform. -
Energy Regulator Wants New Look at Pipeline Approval Policy
Oct 17, 2017 | BNA Daily Environment Report
By Rebecca Kern
The lone Democratic member of the Federal Energy Regulatory Commission wants FERC to re-assesses how it approves new natural gas pipeline projects in light of growing environmental concerns presented to the commission. -
New York Objects to Energy Regulator's OK of Millennium Pipeline
Oct 17, 2017 | BNA Daily Environment Report
By Gerald B. Silverman
Millennium Pipeline Co.’s proposed 7.8-mile natural gas line in New York hit another bump in the road today when the state asked the Federal Energy Regulatory Commission to stay its approval of a waiver for the project and rehear the case. -
An Old Fracking Hot Spot Makes a Comeback
Oct 17, 2017 | The Wall Street Journal
By Lynn Cook
One of the early centers of American shale drilling is roaring back to life, boosted by a building boom of petrochemical plants, fertilizer factories and gas-export terminals along the Gulf Coast. -
The Energy Industry Plots a Complex Path in the Midst of Disruption
Oct 17, 2017 | The New York Times
By Stanley Reed
The last three years have been difficult for the oil and gas industry, as it struggled to cope with lower prices. Are the skies clearing at last? -
Louisiana Oil Platform Blast Leaves One Missing, Seven Injured
Oct 17, 2017 | BNA Daily Environment Report
By Meenal Vamburkar and Bruce Rolfsen
One worker was missing and seven were injured after an explosion late Oct. 15 on an oil platform in Louisiana's Lake Pontchartrain. -
Safety Board Mulls Retreat From Call for Oil Rig Worker Councils
Oct 17, 2017 | BNA Daily Environment Report
By Sam Pearson
U.S. Chemical Safety Board members are reconsidering a recommendation that federal authorities develop regulations to boost worker participation in safety oversight at offshore oil platforms. -
Gulf of Mexico Oil Spill May Be Largest Since Deepwater Horizon
Oct 17, 2017 | BNA Daily Environment Report
By Nico Grant
An oil spill in the Gulf of Mexico last week may be the largest in the U.S. since the 2010 blowout at BP Plc's Macondo well that sank the Deepwater Horizon rig. -
Pruitt's Plan To Repeal CPP Poses Legal Risk For EPA Due To GHG Mandates
Oct 17, 2017 | Inside EPA
By Doug Obey
EPA Administrator Scott Pruitt's decision to repeal the Clean Power Plan (CPP) without formally proposing a replacement appears aimed at minimizing political blowback from conservatives hostile to any greenhouse gas controls but could pose a legal risk for the agency if the courts interpret it as dilatory given mandates to regulate GHGs, industry sources and former officials say. -
Brick Industry Backs EPA's Bid To Delay MACT Lawsuit
Oct 17, 2017 | Inside EPA
Brick and tile industry groups are supporting EPA's motion to freeze litigation over the Obama-era maximum achievable control technology (MACT) air toxics standards for the sector while the agency weighs possible changes to the rule, rejecting environmentalists' claims that a delay in the lawsuit would create public health harms.
Industry and Association News
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Environment News
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Slowing Demand Growth to Push Big Oil from Cars to Chemicals
Oct 17, 2017 | BNA Daily Environment Report
By Javier Blas
Global oil demand growth will slow to a crawl and gasoline use will peak within the next decade, prompting the world's biggest energy companies to accelerate the shift to natural gas and chemicals, according to consultant Wood Mackenzie Ltd.
Major crude producers will have to adapt to significant changes in the coming years, but their businesses can grow. Oil consumption will keep expanding until at least 2035 as the petrochemical industry, which provides the building blocks to manufacture everything from plastics to pesticides, makes up for the contraction in some transport fuels, Wood Mackenzie said in a report Oct. 16.
There's also natural gas, used in power plants and increasingly trucks and ships. In a sign of the growing importance of this less carbon-intensive fuel, the Oil & Money conference, a gathering of hundreds of industry executives that celebrates its 38th year Oct. 17 in London, will open with a full day devoted exclusively to gas.
“The issue for Big Oil is how companies position themselves in a fairly quickly moving landscape,” Ed Rawle, Houston-based chief economist at Wood Mackenzie, said in an interview. Oil is unlikely to drive long-term growth but “gas supply remains relatively robust through 2035, and is a growing focus.“
The prospect of peak oil demand is hotly contested in the energy industry. Some companies, including Royal Dutch Shell Plc and BP Plc, anticipate it happening between 2025 and 2040. Others, such as Exxon Mobil Corp. and Chevron Corp, still forecast decades of uninterrupted growth.
No Peak
By 2035, the expansion in oil demand won't have peaked but will be “minimal compared with what we have seen over the past 20 years,” Wood Mackenzie said in the report. Consumption will have reached a plateau in regions including Europe, the U.S., China and Japan. Only India and some other parts of Asia, Latin America, Africa and the Middle East will still be growing, the consultant said.
Wood Mackenzie said the prospect of an eventual peak in consumption is “very real,” but presented a nuanced view of what will become a multi-speed market. Fuel oil and gasoline consumption will be shrinking—the latter in part due to the growing popularity of electric vehicles. Demand for naphtha—used as a feedstock in the petrochemical industry—will be booming. Diesel consumption will rise too, albeit at a slower pace.
“The petrochemical sector is one of the few bright spots for oil demand,” Wood Mackenzie said, forecasting that this industry will increase its consumption of oil feedstock by 50 percent from 2017 to 2035.
Despite their differences about when oil demand will peak, the world's largest integrated energy companies are nonetheless preparing for the future, largely through a push to invest more in natural gas. They see this fuel playing a greater role in emerging markets including China and India, which are battling air pollution from coal-fired power stations.
The oil industry's biggest deal in recent years was Shell's purchase of BG Group Plc for $54 billion in 2016, which consolidated its position as the world's biggest producer and trader of liquefied natural gas. The deal turned Europe's largest energy producer from “an oil-and-gas company to a gas-and-oil company,” said Chief Executive Officer Ben Van Beurden.
—With assistance from Rakteem Katakey.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594229&vname=dennotallissues&fn=122594229&jd=122594229
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Trump's EPA Swears Off Settling Lawsuits with Environmentalists
Oct 17, 2017 | BNA Daily Environment Report
By Jennifer A. Dlouhy
The Trump administration moved Oct. 16 to curb settlements with environmentalists, instead vowing to fight cases designed to force the Environmental Protection Agency to take action.
EPA Administrator Scott Pruitt said he is ending a “sue-and-settle” practice that has resulted in committing the agency to regulating greenhouse gas emissions or mercury pollution from power plants.
“It's very important that we do not engage in rulemaking through litigation,” Pruitt told reporters at an Oct. 16 briefing. “As of today with this directive and the memorandum, we're no longer going to be involved in that practice.”
Pruitt vowed to avoid “regulation through litigation” in an address to EPA employees in February and later instructed agency staff to limit the practice. Separately, Attorney General Jeff Sessions has barred federal attorneys from negotiating settlements that result in payments from companies to third-party organizations, such as environmental groups.
But Pruitt's new directive makes it formal. Under the policy, the agency will publicize petitions targeting the EPA, include states and regulated entities in settlements that affect them and publish proposed agreements so that the public has 30 days to comment. The EPA also won't agree to issue rules quickly through the settlement process, Pruitt said. Under the new policy, the agency will also exclude paying attorney fees.
Conservatives Have Criticized Practice
The move takes aim at a practice conservatives have long criticized as empowering environmental groups to force federal agencies to issue regulations and commit to timelines for imposing them. Agencies that agree to settle with those groups—and stop defending themselves in court—generally negotiate the agreements privately, without the kind of public process that typically guides federal rulemaking. The resulting agreements effectively allow outside groups to hijack a federal agency's agenda, opponents say.
“It's a regulation through litigation process,” Pruitt told reporters at a briefing Monday, adding that it serves to “bypass” the formal rulemaking process laid out by the Administrative Procedure Act.
“No matter who the plaintiff is—it doesn't matter if conservative or not, liberal or not—whatever the case may be, we shouldn't use the litigation process in a manner that bypasses our APA responsibilities,” Pruitt said.
Recent U.S. clean air rules have been driven by such legal settlements, including former President Barack Obama’s Clean Power Plan, which aims to pare greenhouse gas emissions from electricity. Pruitt's EPA proposed repealing that initiative last week.
In December 2010, the EPA pledged to set curbs on carbon dioxide emissions from power plants and oil refineries as part of a settlement with environmental groups and more than a dozen state and local governments. The EPA blew the deadline for the power plant rule—originally due in May 2012, though finally imposed more than three years later—and never finalized similar standards for refineries.
“There is a time to settle cases,” Pruitt said. “This is not a statement against consent decrees generally or settlements generally. It's the abuses around those practices that we are aiming at here” to make sure they are not used to “subvert” the process.
This is going to be applied “across the board,” with every plaintiff that sues the agency. “This is not particular to one type of plaintiff,” Pruitt said.
The EPA settled more than 60 lawsuits with outside groups between 2009 and 2012, resulting in more than 100 new regulations, according to the U.S. Chamber of Commerce, which has criticized the practice.
Business Community Concerns
“Over the past decade, the business community has expressed growing concern about interest groups using lawsuits against federal agencies and subsequent consent decrees approved by a court as a shortcut technique to influence agencies’ regulatory agendas,” Chamber senior vice president William Kovacs told a House subcommittee hearing in May.
Advocacy groups sometimes sue to compel federal agencies to act when they are slow to finalize requirements or are ignoring an issue altogether. For instance, the EPA settlement on greenhouse gases from power plants and refineries came in part because the agency did not tackle the issue despite a 2009 conclusion that the emissions endanger the public health and welfare.
The federal government doesn't just settle lawsuits with environmental organizations. Lawsuits filed by trade associations and special interest groups as well as corporations are also fair game for legal settlements.
Any policy that discourages negotiations aimed at resolving those lawsuits early could lead to more protracted court battles, legal experts said.
“Lawsuits are incredibly expensive,” said Joshua Galperin, a research scholar at Yale Law School. “Environmental groups and industry groups both—and those are the groups who sue EPA—they're both well-funded” and “can continue the process of a lawsuit really as long as it takes.“
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594220&vname=dennotallissues&fn=122594220&jd=122594220
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Pruitt Order Ending 'Sue-And-Settle' Could Increase Litigation, Critics Say
Oct 16, 2017 | Inside EPA
By Dawn Reeves
EPA Administrator Scott Pruitt's new directive ordering the agency to end so-called “sue-and-settle” suits is being met with concern by industry attorneys and skepticism by environmentalists, who say the order could make settlements impossible, even in cases where the agency has a mandatory duty to act, and will likely result in more litigation and court orders providing the agency with less time to act.
The new process Pruitt has created “paralyzes EPA from responding to these kinds of cases [and] probably makes almost every single case go to actual full-scale litigation and go all the way to judgment when these cases have merit,” says one industry attorney. “That's probably not a good thing.”
The attorney and others say the directive, while intended to please conservatives, is more messaging than actual reality.
But supporters of Pruitt's actions welcome his order, saying it will help ensure that states and industry groups are consulted before EPA agrees to any new requirement.
For example, Sen. John Barrasso (R-WY), chairman of the Senate environment committee, said in a statement that during the previous administration, “EPA advanced its political agenda by abusing its authority and leaving states and Congress in the dark. The public deserves to know how its government is operating.”
Even some Trump administration critics agreed, saying the order appears aimed more at notifying third parties than at limiting settlements, though they downplayed the directive. Robert Sussman, a former high-ranking EPA official in both the Obama and Clinton administrations, says there is “less here than meets the eye,” because, “I don't think he's saying EPA won't settle suits. He's just saying we're going to go a little further to make sure public participation, which means industry and states participate in these settlements. . . . I view this as more politics than substance.”
“Sue-and-settle” is a term that Pruitt and other critics have long used to describe litigation routinely brought by environmentalists during the Obama administration to win what they blast as “sweetheart deals” that require EPA and other agencies to issue regulations. Much of their criticism resulted from court findings that state and industry third parties lack standing to intervene because setting a schedule does not necessarily harm their interests.
But environmentalists reject the term, saying such suits are brought most often to force EPA to comply with missed statutory deadlines. Moreover, settlement of the suits usually does not result in the agency agreeing to issue a rule but to set dates to propose and take “final action,” which could include a decision to reject a regulatory determination.
And, they say, such settlements most often result from litigation where the agency has a non-discretionary duty to act, and that they give EPA significantly more flexibility than if a judge were to impose a remedy.
To address his concerns, Pruitt's Oct. 16 directive lays out a 10-step process EPA must follow when considering a settlement agreement or consent decree for complying with statutory deadlines, while an accompanying memo lays out Pruitt's reasoning.
Pruitt says the directive will end “sue-and-settle” and follows on a verbal directive he announced earlier this year.
EPA also issued an Oct. 16 statement that says with the new policy, Pruitt has fulfilled “his promise to end the practice of regulating through litigation that has harmed the American public.”
Notification Requirements
Among the steps the directive lays out is a requirement to publish any notices of intent to sue EPA within 15 days of receipt; a requirement to “directly notify any affected states and/or regulated entities of a complaint of petition for review,” and to “take any and all appropriate steps to achieve the participation of affected states and/or regulated entity.”
EPA is forbidden from entering into a consent decree with terms that the court would have lacked the authority to order if the parties had not resolved the litigation, or one that “converts an otherwise discretionary duty” into a mandatory duty.
It also requires EPA to provide sufficient time and adequate notice on any agreement that includes a deadline for EPA to issue a final rule, and it seeks to withhold payment of attorneys' fees if there is no “prevailing party” and will not resolve the question of attorney's fees and costs “informally.”
If EPA moves forward with a consent decree, the agency must do so in a fully public process, and could withdraw it based on comments received.
However, Pruitt reserves the right to “permit EPA to deviate from the procedures set forth in this directive” but vows that in no circumstances to allow the agency to “violate its statutory authority or to upset the constitutional separation of powers.”
The memo details how the process has been abused, though the Obama EPA was largely exonerated by the Government Accountability Office, which looked into the matter in 2015 after GOP complaints. Others have noted that Pruitt may have to embrace the tactic in order to be able to negotiate longer time frames to address mandatory statutory reviews, such as ambient air quality standards that must occur every five years, and air toxics standard reviews every three.
One environmentalist notes that Pruitt has already accepted such a settlement when EPA earlier this year agreed with the developers of Pebble Mine in Alaska to withdraw a proposed veto of the project's Clean Water Act permit the Obama administration sought and was stayed by a court order. The agreement set a November 2019 deadline to advance the process.
The source says this type of settlement is exactly the type Pruitt criticizes if it is not with industry.
Several sources say new procedural requirements Pruitt has put in place -- such as provisions requiting all affected parties to agree to any settlement -- are burdensome if not impossible to meet, making it likely that EPA will end up with court-imposed deadlines that may be more difficult to meet than a negotiated agreement.
The industry attorney says that while the directive will require the agency to be more transparent, it could also make the process so burdensome that that few if any cases settle.
For example, the step that requires EPA to give affected parties notice about any such agreement, could become “extraordinarily burdensome to EPA offices and [the Office of General Counsel] to try to comply.”
The industry source also says the requirement that EPA seek to receive concurrence from every affected state and regulated entity could also be problematic because the agency will “never get concurrence from everyone.”
Finally, the source rejects the idea that EPA will be able to avoid paying attorneys' fees when there is a settlement, noting that federal courts have long required a prevailing party to be reimbursed. Any EPA effort to avoid such payment could also become subject to litigation and EPA could end up paying more than it would have otherwise.
'Open The Floodgates'
Avi Garbow, who was the Obama EPA general counsel and is now in private practice, is also critical of the move, noting that promoting transparency and public participation in environmental rulemaking is not a political issue but “a bedrock principle of our rule of law.”
Garbow adds that many of the procedures in the directive “are either formally, or informally, already in existence,” including a past practice of the Obama general counsel's office posting all notices-of-intent to sue on its website along with petitions for review. All draft consent decrees were published for comment and those comments were considered before deciding whether to finalize the agreements.
“It will be interesting to see how the agency determines how, procedurally, to achieve the participation of affected states or regulated entities in any negotiation process in which such states or entities are not parties to the litigation. Typically, intervention into proceedings in litigation is within the purview of the Department of Justice, and courts do not uniformly accede to permissive requests to intervene or otherwise participate in settlement discussions when all parties are not in agreement,” Garbow says.
Finally, he notes it will be important to understand how a determination is made about affected states or regulated entity in a particular complaint or petition. There are many examples of national rulemaking that arguably render every state an affected state.
For example, he says, EPA's decision to set a cleanup plan for the Chesapeake Bay drew suits from states as “geographically distant” as Florida and Oklahoma. If EPA decides those states need to be part of any deal, it could “literally [open] the floodgates in a way that merely stymies the Justice Department’s ability to adequately represent EPA and the public interest.”
Finally, an environmental attorney long involved in deadline suits against EPA says, “The whole idea there is some process here EPA is or was engaged in . . . in which it agreed to turn purely discretionary duties into mandatory ones, I think, is laughable” and a “phony narrative.”
The source says groups have long had to sue EPA to perform its mandatory duties and if EPA refuses to do that it will end up getting strict court-imposed deadlines, as it did in a March 13 decision by the U.S. District Court for the District of Columbia this year in California Communities Against Toxics, et al. v. EPA, where a judge set a three-year deadline to complete reviews of existing air toxics rules for 20 industrial sectors.
“We have been filing deadline suits to compel EPA to comply with mandatory duties, and EPA falls short on so many mandatory duties we can't even get to all of them, much less discretionary duties,” the source says. “By the way, Scott Pruitt is engaged in all kinds of purely discretionary [deregulatory] duties even while his agency neglects its mandatory ones.”
https://insideepa.com/daily-news/pruitt-order-ending-sue-and-settle-could-increase-litigation-critics-say
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EPA's Pruitt Boosts Industry Role In Negotiations With Green Groups
Oct 16, 2017 | PoliticoPro
By Alex Guillén
Industry groups will soon get a seat at the table when EPA decides how to respond to some lawsuits from environmental groups.
EPA will ask for the consent of the industries and companies it regulates before agreeing to any deadlines for environmental action sought by “special interest groups,” according to a new directive issued by Administrator Scott Pruitt.
EPA will notify states or industries of any petitions or lawsuits that may affect them and will take "any and all appropriate steps to achieve the participation" of industry during negotiations, Pruitt wrote in his directive that is intended to end the agency’s so-called sue and settle practice.
“Accordingly, EPA shall seek to receive the concurrence of any affected states and/or regulated entities before entering into a consent decree or settlement agreement,” Pruitt continued.
In response to questions from POLITICO, EPA noted the directive does not outright require industry consent on any agreement. And the agency said Pruitt's directive applies to both environmental and industry groups' suits.
But EPA’s new directive to seek industry approval first could lead to “back-room deals” between the agency and those it regulates, according to Amit Narang, a regulatory expert at watchdog group Public Citizen.
“There’s simply nothing for industry groups to come in and discuss with the EPA related to these lawsuits except how they want the EPA to potentially craft a new regulation that was already unlawfully delayed in a way that’s industry-friendly,” he said.
“Pruitt’s doing nothing more than posturing about a non-existent problem and political fiction,” said John Walke of the Natural Resources Defense Council. “His targeting of legal settlements, especially where EPA has no defense to breaking the law, will just allow violations to persist, along with harms to Americans.”
Republicans have complained for years that environmental groups would sue EPA and quickly reach a deal for the agency to take certain actions, bypassing industry input, a practice they termed “sue and settle.” They note that it was those type of lawsuits that led EPA to write the Clean Power Plan, for example.
“Sue and settle ... interferes with the rights of the American people to provide their views on proposed regulatory decisions and have the agency thoughtfully consider those views before making a final decision,” Pruitt wrote in a memo accompanying his directive.
Democrats and environmentalists argue that the deals Republicans have complained about largely targeted missed statutory deadlines, and that any subsequent regulations were still open to the full rulemaking process. And the Clean Power Plan may have been spurred in part by a settlement agreement, but the final rule was developed with all required public input and was subject to legal challenge.
A 2014 study by the Government Accountability Office concluded that the "effect of settlements in deadline suits on EPA’s rulemaking priorities is limited." That study also said that long-standing Justice Department policy prevents EPA from striking a deal in a deadline suit that specifies the substance of any subsequent rule.
Pruitt’s directive quickly landed plaudits from conservative groups.
“The EPA is making it clear that the public and the integrity of the rulemaking process are no longer going to be sacrificed for the political objectives of narrow interests,” Daren Bakst of The Heritage Foundation said in a statement.
William Yeatman of the Competitive Enterprise Institute called it a "welcome" first step, but added that EPA had routinely missed deadlines for years under the Clean Air Act and other laws, and should seek more resources from Congress to meet those deadlines and avoid environmental groups suing.
The 2014 GAO study also noted that EPA's proposed consent decrees, published in the Federal Register, traditionally took public comment for 30 days before moving forward.
Pruitt acknowledged that in his memo, and while he admitted those comments sometimes led to changes in the final agreements, “numerous stakeholders lack faith in the effectiveness of this comment opportunity” because EPA and environmental groups “have already agreed in principle to the proposed settlement.”
It remains unclear how EPA plans to defend itself in court over clearly missed deadlines set by Congress. The agency said only that it "will handle any lawsuits consistent with today's directive."
But the agency's critics say there's simply no viable defense.
“These are the simplest lawsuits for environmental groups to win and for the EPA to lose. There’s no point in EPA fighting these lawsuits. The evidence is as simple as looking at the calendar and saying a congressional deadline has been missed,” said Narang. “If EPA was to fight these cases in court, that would be one of the most wasteful uses of taxpayer money.”
In recent weeks, Pruitt has racked up several such deadline suits.
For example, Democratic attorneys general and environmental groups are preparing to sue Pruitt for missing a key implementation deadline for the 2015 ozone standard. EPA is also facing down a lawsuit from the state of Maryland for failing to respond to its petition seeking pollution controls on upwind power plants.
Similar consent decrees have been reached in the past with industry groups as well. The agreement setting deadlines for EPA to issue its 2014-16 Renewable Fuel Standard volumes, for example, was reached with oil and refining industry groups.
https://www.politicopro.com/energy/story/2017/10/epas-pruitt-boosts-industry-role-in-negotiations-with-green-groups-163450
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Nominees Sound Off On Climate, Chemicals; Dems Disappointed
Oct 17, 2017 | E&E Daily
By Corbin Hiar and Sean Reilly
The top Democrat on the Environment and Public Works Committee yesterday slammed four high-profile U.S. EPA nominees for revealing too little about how they'd approach their new jobs.
"These were not difficult questions," Sen. Tom Carper said of the written queries he sent the candidates after their contentious confirmation hearing earlier this month.
The Delaware Democrat released the responses ahead of the committee's meeting tomorrow to vote on the picks, including Michael Dourson to head up the agency's chemicals office, Bill Wehrum for air chief, Matt Leopold for general counsel and David Ross to lead the water office.
Carper was particularly troubled by responses from Dourson, who has taught at the University of Cincinnati and led an industry-friendly toxicology nonprofit (E&E Daily, Oct. 5).
"An individual seeking to become our nation's top chemical safety regulator should easily be able to answer how EPA should protect the most vulnerable among us from exposures to chemicals or the important new chemical safety law he would be charged with implementing," Carper said.
"Dr. Dourson didn't provide substantive responses to most of my questions about both of those key issues," he said.
The committee's ranking member was referring to asking Dourson whether he would commit to using a tenfold safety factor to account for the added risks some carcinogenic chemicals pose to pregnant women, developing children and other vulnerable populations.
Dourson would only promise to use "the best available science in considering any regulatory actions that come to me for decision making."
The nominee for assistant administrator of chemical safety and pollution prevention also offered the same one-sentence response to 14 specific questions about implementing the Toxic Substances Control Act overhaul that was enacted last year.
"If confirmed I will commit to thorough review of the final statute and would be happy to meet with the committee to further discuss any outstanding concerns," said Dourson.Wehrum
Carper was also upset by responses he received from Wehrum, who is up for agency assistant administrator of air and radiation.
The Democrat said the nominee "similarly dismissed my straightforward questions on ozone, mercury emissions and greenhouse gases — some of the most serious threats to clean air."
Wehrum, currently head of the administrative law group at the firm Hunton & Williams LLP, wrote that he believed "the climate is changing and that anthropogenic emissions contribute to the change."
Wehrum also endorsed Administrator Scott Pruitt's view — expressed in Pruitt's own confirmation hearing early this year — that EPA has "obligations" to address carbon dioxide issues.
That's because of the agency's 2009 endangerment finding and the Supreme Court's earlier decision in Massachusetts v. EPA, which found EPA has the authority to regulate greenhouse gas emissions under the Clean Air Act.
Pressed for specifics, however, Wehrum repeatedly punted. Asked, for example, whether he agreed with President Trump's decision to pull the United States out of the Paris climate accord, Wehrum replied that Trump is the boss.
"I believe it was within his authority to withdraw," he wrote. "I respect his decision."
On more concrete policy questions, such as repeal of the Clean Power Plan, he said that "if confirmed, my primary responsibility will be to faithfully implement the Clean Air Act, including authorities and restrictions applicable to greenhouse gases."
Wehrum also stopped short of outlining steps he might take to confront the thorny issue of ozone-forming emissions that originate in one state and then contribute to downwind compliance problems in other states.
While acknowledging that inhaling "too much ozone" can cause a wide array of cardiovascular problems, Wehrum went no further than alluding to Clean Air Act provisions intended to address what is technically known as "interstate transport."
Under President George W. Bush, Wehrum served as acting head of the Office of Air and Radiation from 2005 to 2007 but was unable to win Senate confirmation in the face of Democratic opposition.
In private practice, he has since represented the American Petroleum Institute and other industry groups challenging various EPA air quality regulations.
If confirmed in this go-around, Wehrum has said he would not participate in matters involving former clients for a year after last providing a service.
Asked whether he would meet privately with ex-clients to discuss regulations that he had previously sought to weaken or repeal, Wehrum said he would work closely with EPA ethics officials "to understand and strictly comply with my ethical obligations."Leopold, Ross
Like Trump's other EPA nominees, Leopold, who is up for EPA general counsel, and Ross, being considered for water chief, didn't disclose much in their written responses to Carper's questions.
Leopold again touted his service at the Justice Department's Environment and Natural Resources Division, calling it "the nation's environmental law firm," but said he could not "prejudge" how EPA's proposal to cut $20 million in funds it sends DOJ will affect the division's work.
In his written responses, Ross emphasized collaborating with states on everything from cleaning up the Chesapeake Bay to preventing future crises like the lead contamination of Flint, Mich.'s drinking water.
He also said that he does not have "any pre-determined views" on whether certain sectors of the economy are overly regulated by the Clean Water Act.
Lawmakers asked Leopold and Ross about the Trump administration's process in rolling back the Clean Water Rule, in which EPA political appointees reportedly verbally directed career staff to delete benefits of the regulation. They replied that they support the "appropriate use of both written and oral guidance."
All four EPA nominees took a similar tack on several oversight questions from Carper. Asked if they would shield their offices from political influence, the nominees uniformly promised to follow "all legal and ethical obligations."
Quizzed about EPA's anti-leak training for career employees and whether they can make "lawful disclosures" to Congress and others, the Trump picks said that, if confirmed, they would commit to protecting employee rights.
They also pledged to respond to the committee's requests and release their calendars on a "timely basis" — rather than daily, as Carper had requested.
At their confirmation hearing, the ranking member told EPA picks that Democrats would oppose their nominations until the agency does a better job of responding to the minority's oversight requests (Greenwire, Oct. 4).
Yesterday the president, speaking with Senate Majority Leader Mitch McConnell (R-Ky.) from the White House, called Democrats obstructionists for blocking or slowing his nominees.
Reporter Kevin Bogardus contributed.
https://www.eenews.net/eedaily/2017/10/17/stories/1060063805
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(ACC Mentioned) California Requires Disclosure of Cleaning Product Chemicals
Oct 17, 2017 | BNA Daily Environment Report
By Carolyn Whetzel
California edged out New York in becoming the first state to require manufacturers to disclose potentially harmful chemicals in air fresheners, detergents, and other cleaning products.
Democratic Gov. Jerry Brown signed the Cleaning Product Right to Know Act of 2017 (S.B. 258) Oct. 15, giving Procter & Gamble, Unilever, SC Johnson, The Clorox Company, and other companies until Jan. 1, 2020, to post the chemical ingredients in their consumer products online. The ingredients must be listed on product labels a year later.
New York is poised to release guidance to compel online disclosure of chemicals in cleaning products beginning Jan. 1, 2019.
“Governor Brown's signing of S.B. 258 marks an incredible milestone in the fight for ingredient disclosure,” Seventh Generation Chief Executive Officer Joey Bergstein told Bloomberg Environment in an Oct. 16 email. “While we celebrate this milestone, we also understand our work is far from over and will use this momentum to continue working in support of consumers’ right to know and moving similar legislation state-to-state.”
Seventh Generation, SC Johnson, Proctor & Gamble, Reckitt-Benckiser Group, and the Consumer Specialty Products Association are among the more than 100 businesses and environment, public health, worker, and other organizations that supported the bill state lawmakers sent to the governor Sept. 13. Many of those manufacturers, including Seventh Generation, are voluntarily disclosing ingredients in their household cleaning products.
Under the new law, manufacturers must list added chemical ingredients, including fragrances and allergens, identified as unsafe by state, national, and international scientific authorities. The law also requires disclosure of up to 34 byproduct chemicals of concern if they are present at a concentration of 100 parts per million or higher.Household, Institutional Products
The law targets a broad range of household and institutional products, like detergents, floor and surface cleaners, waxes, polishes, and air care and automotive care products, but not industrial cleaning agents for cosmetics.
Chemicals found in cleaning products have been linked to cancer, birth defects, asthma, and other serious health problems, proponents of the bill said. However, many industry groups oppose the measure.
“Unfortunately, S.B. 258 will create more confusion for consumers and make businesses more vulnerable to frivolous litigation,” the American Chemistry Council said in an Oct. 16 email. “The bill also fails to account for potential exposure levels, which means consumers could easily draw assumptions that some ingredients pose risks when none actually exist.”http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594226&vname=dennotallissues&fn=122594226&jd=122594226
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UN's Saicm Seeks Stakeholder Input On Knowledge Platform
Oct 17, 2017 | Chemical Watch
The UN's Strategic Approach to International Chemicals Management (Saicm) has launched a stakeholder survey to help in the design of an online knowledge management platform.
The survey will be used to gather baseline information and assess stakeholder needs. It is anonymous and should take only around eight minutes, Saicm says.The platform comes out of the Global Environment Facility's (GEF) approval of the concept of Saicm's project on global best practices on emerging chemical policy issues of concern.
https://chemicalwatch.com/60133/uns-saicm-seeks-stakeholder-input-on-knowledge-platform
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Energy Regulator Wants New Look at Pipeline Approval Policy
Oct 17, 2017 | BNA Daily Environment Report
By Rebecca Kern
The lone Democratic member of the Federal Energy Regulatory Commission wants FERC to re-assesses how it approves new natural gas pipeline projects in light of growing environmental concerns presented to the commission.
Cheryl LaFleur noted those concerns in a dissent on FERC's approval Oct. 13 of Dominion Energy's Atlantic Coast Pipeline, a 604-mile pipeline proposed through West Virginia, Virginia, and North Carolina, and EQT Midstream Partners’ Mountain Valley pipeline, a 303-mile pipeline proposed to go through West Virginia and Virginia. Dissent by FERC commissioners on natural gas pipeline certificates is rare.
LaFleur told Bloomberg Environment Oct. 16 that “the number of pipelines we have been certificating and the strength of the opposition has made the balancing less straightforward in all of these cases” than it used to be.
She said FERC's 1999 Certification of New Interstate Natural Gas Pipeline Facilities, a policy statement the commission uses as a barometer of whether to certify new pipeline construction, probably needs to be looked at anew given the glut of natural gas on the market and a growing number of pipeline applications.
“That was 18 years ago, at the time there was great concern about a lack of gas pipelines, gas was very expensive,” LaFleur said. “It was written in a time when the commission was trying to ensure there was a clear regulatory path for needed infrastructure.”
Precedent Agreements
As of late, when determining the need for a new pipeline, FERC has started to rely more heavily in on precedent agreements, which are contracts between the pipeline developer and the customer signed before an application is submitted for the FERC natural gas certificate, LaFleur said.
She said she raised the matter in her dissent of the two pipeline approvals because it seemed like a good time “to get that conversation started.” Public comment should be collected first if FERC decides to re-interpret its policy, she added.
Dominion told Bloomberg Environment it plans for the Atlantic Coast Pipeline to be operational in late 2019, and EQT said it aims for the Mountain Valley Pipeline to be operational in late 2018.
LaFleur said in her dissent that it wasn't clear there was need for the Mountain Valley Pipeline.
But EQT Midstream Partners told Bloomberg Environment that when it started its pre-filing process with FERC three years ago, it was fully subscribed with customers.
Pipeline Developer Contracts
The Natural Resources Defense Council filed as an intervenor in both the Atlantic Coast and Mountain Valley pipeline dockets at FERC, saying that these projects aren't necessary because there isn't enough demand for the fuel and other clean energy alternatives are available.
Montina Cole, a senior attorney at NRDC who focuses on FERC review of natural gas pipelines, said FERC was relying too much in its pipeline approval decision-making on the contracts signed between pipeline developers and customers. For the Mountain Valley Pipeline, all five of the customers are affiliates of the pipeline developer, and for the Atlantic Coast pipeline, the majority of the customers are affiliates of the developer, Cole told Bloomberg Environment Oct. 16.
“That is really problematic when we see reliance on those kind of agreements where you have the developer on both sides of the transaction,” Cole said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594224&vname=dennotallissues&fn=122594224&jd=122594224
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New York Objects to Energy Regulator's OK of Millennium Pipeline
Oct 17, 2017 | BNA Daily Environment Report
By Gerald B. Silverman
Millennium Pipeline Co.’s proposed 7.8-mile natural gas line in New York hit another bump in the road today when the state asked the Federal Energy Regulatory Commission to stay its approval of a waiver for the project and rehear the case.
The state said FERC erroneously interpreted provisions of the Clean Water Act that gave New York one year to review and sign off on the Valley Lateral Project. The state denied Millennium water permit rights for the project, located about 75 miles northwest of New York City.
The project is needed to transport natural gas to a 680-megawatt natural gas plant owned by Competitive Power Ventures Inc. The project has been a flashpoint in the larger battle between environmentalists and companies in the Northeast that contend that more pipelines are needed to meet the region's demand for natural gas.
FERC issued a waiver Sept. 15, overriding the decision from the New York State Department of Environmental Conservation that denied water permit rights. The department failed to act on a water permit within a one-year statutory deadline under the Clean Water Act, FERC said.
“Millennium would like to continue working with the New York DEC, but we stand by our argument that the Clean Water Act requires states to act within one year of receipt of an application,” Michelle Hook, a spokeswoman for Millennium, told Bloomberg Environment in an email. “We remain committed to seeing this project through by following the letter of the law.”
The central issue in the dispute between the state and FERC is interpretatation of when the clock starts on the state's review. The state failed to act within one year of receipt of Millennium's application, but New York, in asking for a stay, said the clock starts ticking when a complete application is submitted, FERC said.
“FERC should not, and cannot, be allowed to undercut the state's ability to protect our water resources by making informed decisions to ensure water quality standards are met,” the Environmental Conservation Department said in a statement. “DEC demands that FERC refrain from authorizing Millennium to commence construction of the project while DEC's appeal is heard.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594219&vname=dennotallissues&fn=122594219&jd=122594219
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An Old Fracking Hot Spot Makes a Comeback
Oct 17, 2017 | The Wall Street Journal
By Lynn Cook
One of the early centers of American shale drilling is roaring back to life, boosted by a building boom of petrochemical plants, fertilizer factories and gas-export terminals along the Gulf Coast.
The Haynesville Shale, a giant natural-gas field in northwest Louisiana, was one of fracking’s hottest spots a decade ago. But it fizzled out about five years ago as gas prices plunged and drillers focused on finding oil next door in Texas. Now, the Haynesville is being reborn as companies with longstanding positions in the area, such as Chesapeake Energy Corp. CHK -1.55% , and newcomers seeking opportunity rush back in and drill again.
Gas production from the Haynesville has risen more than 20% so far this year, to more than 7 billion cubic feet a day from less than 6 billion in January, according to the U.S. Energy Department. The number of rigs active in northern Louisiana parishes and the Texas portion of the field has more than tripled in the past year to 44, according to oil field services company Baker Hughes Inc.
“The Haynesville is where it began,” said Frank Patterson, Chesapeake Energy’s vice president of exploration and production.
The company has been learning how to get more out of the ground by drilling and fracking longer wells, Mr. Patterson told investors earlier this month. Chesapeake, which now produces more than 1.2 billion cubic feet of gas each day in the Haynesville, plans to ramp up efforts to re-frack old wells where production is starting to peter out to squeeze more out of them, using newer technology.
QEP Resources Inc. QEP -0.67% is also re-fracking 30 Haynesville wells this quarter and plans to drill more in the Bossier formation in northern Louisiana, which overlaps parts of the Haynesville but at a different depth.
“The payouts on these wells are extremely attractive at $3 gas,” said Charles Stanley ,QEP’s chairman and chief executive. Gas this year has averaged roughly $3 per thousand cubic feet at Louisiana’s Henry Hub, a benchmark for U.S. prices.
A new report by the U.S. Geological Survey estimates the Haynesville and Bossier shales contain more than 300 trillion cubic feet of natural gas, up from roughly 70 trillion cubic feet in its last survey in 2010.
Private companies have piled into the Haynesville over the past 15 to 18 months, thanks to backing from private-equity firms. Dallas-based Covey Park, backed by Denham Capital, and Vine Oil & Gas LP, backed by Blackstone Group BX 1.00% LP, have collectively spent billions buying property in the area from Royal Dutch Shell PLC, Exxon Mobil Corp.and others.
“If you have Haynesville acreage, it’s a good time to drill,” said Clay Lightfoot, an analyst with energy consulting firm Wood Mackenzie.
Driving the trend is a dramatic reduction in costs. Three years ago, the Haynesville had the most expensive well costs in the Lower 48 States, in part because its fuel-bearing rocks are the deepest in the U.S., some more than 15,000 feet underground. But in 2014, when oil prices started to plunge from over $100 to less than $50, some companies refocused on natural gas and began experimenting with technology such as long lateral wells that has helped improve the economics of extraction.
Rising demand for gas has boosted the area’s prospects. The U.S. Energy Department forecasts that between now and 2040, consumption of natural gas will increase more than that of any other fuel source, as demand from big industrial users rises and power plants rapidly replace coal-fired facilities.
Regional producers can now also export their liquefied natural gas. Cheniere Energy Inc .LNG 1.81% ’s Sabine Pass LNG plant, a major exporting facility that opened in Louisiana last year, is sending cargoes of liquefied natural gasto Asia, Europe and South America. A dozen other LNG projects are under construction or are permitted and planned in Texas, Louisiana, Mississippi and Maryland.
That’s a potential drawback for industrial users in the area, such as petrochemical plants, of which there are almost 80 under construction along the Gulf Coast. They fear the price of gas—their main feedstock—could rise as America ships more to foreign buyers.
But the flexibility of domestic as well as foreign customers is making gas production in the area more attractive to investors.
Since 2016, Castleton Commodities International LLC spent more than a $1 billion to buy 160,000 acres of Anadarko Petroleum Corp.’s Haynesville land in East Texas, where it operates nearly 2,000 wells. It recently got an equity investment from Tokyo Gas America Ltd., the biggest utility in Japan and one of the largest LNG players in Asia.
Tellurian Inc., TELL -0.19% whose founder Charif Souki started Cheniere, recently bought Haynesville acreage. The company says the cost of producing gas there and moving it to an export terminal will be $2.25 per million cubic feet—a big discount to the daily LNG price for the Gulf of Mexico, which was $7.66 per million Btu last week, according to S&P Global Platts.
Albert Huddleston, founder and managing partner of Aethon Energy, a private company based in Dallas, began buying into the Haynesville three years ago, taking over Noble Energy Inc . NBL 2.76% ’s position. Then, he kept buying. It was a contrarian strategy at the time, said Mr. Huddleston.
“I’m a big believer once you find an area that meets your objectives, you continue to buy in that neighborhood,” he said.
https://www.wsj.com/articles/an-old-fracking-hot-spot-makes-a-comeback-1508232601
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The Energy Industry Plots a Complex Path in the Midst of Disruption
Oct 17, 2017 | The New York Times
By Stanley Reed
Jason Bordoff , a former special assistant to President Obama, is director of the Center on Global Energy Policy at Columbia University. He recently answered email questions from Stanley Reed, a New York Times reporter, on the state of the global energy industry. This is an edited version of their conversation.
The last three years have been difficult for the oil and gas industry, as it struggled to cope with lower prices. Are the skies clearing at last?
Many factors have turned to push up oil prices. OPEC’s policy of supply management is finally having the intended effect, drawing down global inventories. Saudi Arabia recently doubled down on its pledge to curb supplies by announcing it was slashing exports further. Meanwhile, the unprecedented level of cooperation between Russia and Saudi Arabia looks set to continue in 2018, reaffirmed during King Salman’s recent visit to Moscow.
Geopolitical tensions have also threatened oil supplies. Turkey’s threat to retaliate against the recent Kurdish independence vote is one example. President Trump’s likely decertification of the Iran nuclear deal raises the risk that Iranian exports will again be curtailed. And Venezuelan oil output is falling. At the same time, demand growth is surging, rising 2.3 million barrels per day year-on-year in the second quarter.
A key uncertainty is whether oil demand growth remains strong, or slows in the face of slower G.D.P. growth and the gradual penetration of electric vehicles and stronger policies to address pollution and climate change.Continue reading the main storyOil and Money: An International Special ReportA look at where the oil industry is heading globally.In Germany, a National Effort to Subsidize Renewable EnergyOCT 17Boom in American Liquified Natural Gas Is Shaking Up the Energy WorldOCT 16The Challenges for the Energy IndustryOCT 15How Eni Bet Big and Won Big on Natural Gas off EgyptOCT 19After Lean Years, Big Oil May Emerge Stronger Than EverOCT 19
See More »
The partnership between Saudi Arabia, the largest oil exporter, and Russia, one of the three largest oil producers, has been of great interest to the oil markets and may have helped lift prices. How long do you think this partnership between two countries, whose relations were much less friendly in the past, can last? Has the Saudi-Russia relationship supplanted OPEC?
The closer ties between Saudi Arabia and Russia, rooted in unprecedented oil market cooperation, marked one of the most significant geopolitical developments of 2017. Since Crown Prince Muhammad bin Salman’s visit two years ago, there have been a raft of energy, infrastructure and military deals between the two top oil producers. Saudi has signaled that Russian cooperation is key to its continued strong efforts to prop up prices.
Russian participation in the supply agreement seemed uncertain as Russian output was poised to rise, but recent signals by Vladimir Putin suggest he may stick with the agreement through 2018. Coming Russian elections combined with the adverse impact on the economy of the oil price collapse give Putin greater incentive to keep the supply agreement from unraveling. In 2018, a game of chicken may play out, with Russia looking to gradually boost supply, but not if it believes Saudi will abandon course as a result.
Oil exports from the United States continue to rise while exports of natural gas are starting to increase. What impact are these developments likely to have on markets? Do they have geopolitical implications? For instance, will U.S. natural gas exports weaken Russia’s position as a gas supplier to Europe?
American exports of L.N.G. exports are set to rise sharply by the end of the decade. These exports can make America an energy superpower. Unlike coal or oil, which can be moved easily between ports, exporting natural gas has been a far trickier proposition, usually requiring pipelines between buyers and sellers. Moreover, L.N.G. comes with unique energy security risks for gas-consuming countries, since suppliers can (and have) cut off gas flows. But U.S. gas is linked to a hub price and has no destination restrictions. That means more competition, liquidity and supply diversity, and that will make global gas markets more flexible, efficient and secure. Europe, in particular, will be more able to implement its Energy Union package to reduce its vulnerability to Russian gas dependence through market integration, interconnectivity and diversification.
Production of oil and gas from shale rock, or “fracking,” has brought some benefits to the United States, including cheaper and more abundant energy supplies and reduced reliance on polluting coal in power generation. Are these benefits likely to be sufficient to permit the industry to grow over the long term despite criticism from environmentalists?
The shale boom has been one of the strongest buttresses supporting the recovery of the U.S. economy following the Great Recession, helping to lower energy prices for businesses and consumers and shrink the U.S. energy trade deficit. And cheap natural gas has been the primary reason for the recent decline in U.S. coal consumption, with concomitant environmental benefits. Nonetheless, a 2016 Gallup poll found public opposition to fracking on the rise. Shale development can have disruptive impacts on communities and raises risks that must be mitigated through industry best practices and strong regulatory oversight. Industry and regulators need to work together to address legitimate concerns, like the climate change impacts of methane leakage and the seismic risks from wastewater disposal.
Britain and France recently announced dates for stopping the sale of diesel and gasoline-power cars. Car companies like Renault-Nissan and Volkswagen are increasing their investments in electric vehicles. Do developments like these mean that the sunset of the oil and gas business is coming into view?
We are going to be relying on oil and gas for decades to come, but technology and policy pushes have raised the possibility that peak oil demand may occur far sooner than many believed possible. In addition to pollution concerns, China is pushing aggressively on E.V.s, seeing an opportunity to dominate an emerging industrial sector of the future.
Still, it takes time to convert the vehicle fleet, and there remain open questions about the pace of innovation and whether the long-term targets to eliminate the internal combustion engine will be backed by real policies.
Moreover, passenger cars represent only one-quarter of world oil demand, so electrifying personal transport alone would not mean the end of the oil age. Oil demand is set to continue rising in heavy-duty freight, aviation and petrochemicals.
President Trump has said he wants to boost the energy industry in the United States by reducing regulation and opening more land to oil and gas drilling. He is also taking a hard line against Iran, whose oil production is rising. To what degree are his policies likely to have their intended impact? And do they have global implications?
The Trump administration has laid out an ambitious deregulatory agenda to unleash American “energy dominance,” but those steps are unlikely to significantly change the outlook for U.S. oil, gas and coal production and exports. Markets will matter far more than policy.
How damaging will the Trump administration’s leaving the Paris accord and other actions likely be to the global effort to tackle climate change?
Trump’s withdrawal from the Paris climate agreement damages U.S. international credibility and diplomatic relations, cedes U.S. leadership in developing the clean energy technologies of tomorrow and weakens a framework to ratchet up ambition across countries to address the growing threat of climate change. At the same time, as the agreement consisted of voluntary national contributions, the Trump administration would have been free to curb U.S. climate policies even if the country had not withdrawn.
https://www.nytimes.com/2017/10/17/business/energy-environment/future-of-energy-industry.html
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Louisiana Oil Platform Blast Leaves One Missing, Seven Injured
Oct 17, 2017 | BNA Daily Environment Report
By Meenal Vamburkar and Bruce Rolfsen
One worker was missing and seven were injured after an explosion late Oct. 15 on an oil platform in Louisiana's Lake Pontchartrain.
“There is one person who is still possibly unaccounted for at this time,” Jefferson Parish Sheriff Joe Lopinto told reporters Oct. 15. “We have several boats still conducting a search-and-rescue mission, along with a helicopter.”
Responders were able to board the rig early Oct. 16, according to Dave Tibbetts, chief of the Jefferson Parish East Bank Consolidated Fire Department. While there's no visible oil sheen, a low pressure natural gas line is burning off residual fuel.
The Occupational Safety and Health Administration is investigating the incident, an agency spokesman told Bloomberg Environment.
The platform, operated by closely held Clovelly Oil Co., is used to transfer oil from nearby wells. All those injured were on the platform or an adjacent barge.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594231&vname=dennotallissues&fn=122594231&jd=122594231
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Safety Board Mulls Retreat From Call for Oil Rig Worker Councils
Oct 17, 2017 | BNA Daily Environment Report
By Sam Pearson
U.S. Chemical Safety Board members are reconsidering a recommendation that federal authorities develop regulations to boost worker participation in safety oversight at offshore oil platforms.
At an Oct. 16 meeting, CSB Chairperson Vanessa Sutherland said the Interior Department's Bureau of Safety and Environmental Enforcement (BSEE), which regulates offshore oil structures, told the board it doesn't agree with the recommendation. Their position predates the present administration and doesn't reflect the Trump administration's drive to decrease regulations, she said.
The BSEE told the board that it doesn't think the safety recommendation is within its legal authority, nor is it necessary, Sutherland said.
The Chemical Safety Board recommended that BSEE set rules that, among other things, to create worker-elected safety representatives and safety committees; allow these panels to issue enforceable stop-work orders if they see unsafe conditions; and host an annual forum for labor, management, and government regulators to discuss safety and to advance accident prevention.
At the time, the recommendation called for “an adaptable oversight approach that continuously strives to reduce risk, proactive tools to evaluate and monitor safety performance, and meaningful worker participation,” Sutherland said in a statement.
The Chemical Safety Board issues nonbinding safety recommendations to responsible companies and other federal, state, and local government agencies. Its mission is to identify the cause of chemical incidents, which could include poor facility operation and regulatory loopholes.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594230&vname=dennotallissues&fn=122594230&jd=122594230
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Gulf of Mexico Oil Spill May Be Largest Since Deepwater Horizon
Oct 17, 2017 | BNA Daily Environment Report
By Nico Grant
An oil spill in the Gulf of Mexico last week may be the largest in the U.S. since the 2010 blowout at BP Plc's Macondo well that sank the Deepwater Horizon rig.
The Delta House floating production facility about 40 miles (64 kilometers) southeast of Venice, La., released 7,950 to 9,350 barrels of oil Oct. 13, according to closely held operator LLOG Exploration Co. That would make it the largest spill in more than seven years, data from the U.S. Bureau of Safety and Environmental Enforcement show, even though it's a fraction of the millions of barrels ejected in the 2010 incident.
The LLOG spill was triggered by a fracture in a flowline jumper, Rick Fowler, the company's vice president for deepwater projects, said in an email. That's a short pipeline used to connect nearby subsea structures. Multiple barriers placed on either side of the fracture stopped the release, but the the flowline jumper hasn't yet been repaired, Fowler said.
Oil production from Delta House dropped to around 57,000 barrels of oil equivalent a day from more than 90,000 before the spill, he said. The subsea system affected by the fracture was shut in, though nearby connected systems weren't. The fracture wasn't caused by Hurricane Nate and there were no associated injuries, he said.
BSEE, the federal agency which regulates offshore energy and mineral extraction, started an investigation into the cause of the spill, Karla Marshall, a spokeswoman, said by telephone.
The 2010 blowout and explosion at the Deepwater Horizon ultradeep-sea drilling rig off the coast of Louisiana left 11 workers dead and set off the worst offshore oil spill in U.S. history. BSEE, an agency of the Interior Department, was established in the wake of the incident as part of reforms designed to separate federal regulatory responsibilities from lease sales and revenue generation.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122594233&vname=dennotallissues&fn=122594233&jd=122594233
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Pruitt's Plan To Repeal CPP Poses Legal Risk For EPA Due To GHG Mandates
Oct 17, 2017 | Inside EPA
By Doug Obey
EPA Administrator Scott Pruitt's decision to repeal the Clean Power Plan (CPP) without formally proposing a replacement appears aimed at minimizing political blowback from conservatives hostile to any greenhouse gas controls but could pose a legal risk for the agency if the courts interpret it as dilatory given mandates to regulate GHGs, industry sources and former officials say.
The strategy, which the administrator announced Oct. 10, comes as many legal experts and industry groups say EPA ultimately has little choice but to pursue a replacement rule of some kind.
While the agency released a proposed rule to repeal the CPP, it only pledged to seek input at some point about whether and how it should regulate power plant GHGs.
To that end, it recently sent a draft advance notice of proposed rulemaking (ANPR) to the White House Office Of Management and Budget for interagency review.
But that ANPR is likely to invite a barrage of criticism from environmentalists and other CPP supporters, given that it is based on a massive administrative record from the Obama administration on the need for GHG controls, as well as specific rules for regulating the gases that cause climate change.
And several sources thus see EPA's decision to proceed with the ANPR -- rather than floating a formal replacement proposal that is narrower than the CPP -- as a political rather than legal strategy that temporarily avoids endorsing even the most modest of GHG curbs, given prior criticism by EPA Administrator Scott Pruitt and President Donald Trump of such rules.
“He doesn't want to be tagged with being the EPA administrator who got rid of the CPP but then came out with a CPP of [his own] that would involve embracing the endangerment finding,” a former agency official says, referencing the landmark 2009 finding that GHGs endanger public health and welfare.
That finding is embraced by numerous climate experts but opposed by several conservative groups.
For instance, the Texas Public Policy Foundation is now urging the agency to use its ANPR to tee up a long-term review of that finding, as well as their related legal argument that the Obama EPA wrongly issued the rule without a risk finding specific to the power sector.
“I think people at pretty high levels decided they did not want to have fingerprints on a CPP-like rule that regulated [carbon dioxide] emissions, even if it is a very narrow rule,” the former official says.
Underscoring the potential blowback that some hard-line conservatives might offer if EPA were to propose a replacement, an email obtained by E&E News from the conservative think tank Heartland Institute outlines the group's strategy to press Pruitt to go after the GHG risk finding.
One idea expressed at a Sept. 28 internal meeting, Heartland CEO Joseph Bast wrote, is to "push Pruitt to start a proceeding for reconsideration of the Endangerment Finding . . . he won't do it without pressure."
'Enough is Enough'
EPA announced Oct. 10 that Pruitt signed a proposed repeal of the Obama-era CPP that would have required power plants to cut their GHG emissions 32 percent by 2030, from 2005 levels.
Late that same day, EPA said in a status report filed in CPP litigation in the United States Court of Appeals for the District of Columbia Circuit that it would sign “in the near future” an ANPR to solicit comment on a GHG emission reduction approach consistent with the Trump EPA's legal interpretation of its authority to regulate GHGs.
Pruitt in an Oct. 11 interview with conservative talk radio host Hugh Hewitt argued that the CPP must be repealed quickly to remove “uncertainty” for the power sector.
“You’ve got a rule that’s been stayed by the U.S. Supreme Court. But you don’t know how long that stay is going to, you know, remain in place. And as such, those folks that are regulated across the country, they don’t want the uncertainty,” Pruitt said.
Pruitt also reprised arguments that the CPP is part of a “war on coal” that has cost mining industry jobs.
But several sources say the repeal-first strategy runs legal risks for EPA, to the extent the courts perceive it as merely a delaying tactic. “At what point do they say, 'Enough is enough,'” the former official says, in reference to the D.C. Circuit, which has granted two 60-day extensions holding the pending litigation in abeyance as EPA reviews the regulation.
The former official calls the issue “complicated,” but says the possibility that the court loses patience “needs to be considered a threat. The D.C. Circuit has been very careful to keep control over this case. They haven't given EPA a long leash.”
And the source says that issuing an ANPR rather than some kind of replacement -- coupled with claims that EPA has a mandatory duty to regulate GHGs in the wake of the Supreme Court's 2007 ruling in Massachusetts v. EPA -- raises the risk the court concludes the Trump EPA is “slow walking the possibility of putting something in” the CPP's place.
Some have noted that courts can only consider issues presented in the administrative record that is before it, and it could be argued that an ANPR is merely speculative about the agency's intentions, making it less likely that courts would consider that document as they weigh whether EPA has fulfilled its duty to regulate GHGs.
When and how the court would act to thwart the Trump EPA is not entirely clear, given that the the Supreme Court stayed the Clean Power Plan in February 2016.
But the former agency official says that the possibility that the D.C. Circuit takes further steps, perhaps by issuing its long-delayed ruling in the litigation, cannot be discounted. It also bears watching whether states and environmentalists decide to take further legal steps in the wake of EPA's ANPR approach, the source says.
The source also notes that two of the court's judges -- David Tatel and Patricia Millett -- who, in in tandem with the most recent 60-day extension of the litigation, acknowledged environmentalists' concerns that leaving the high court's stay in place indefinitely would render EPA's “obligation” to regulate essentially moot.
However, the judges at the time also suggested that proponents of the rule consider approaching the Supreme Court to lift the stay, a step that the rule's backers have been reluctant to take.
'Danger Point'
An industry source says there is a credible argument for the Trump EPA's strategy of issuing an ANPR rather than a proposed replacement. That approach is often used for “hard questions” on which there may be divergent views, the source says, adding that an ANPR strategy may be preferable to rushing out a “half-baked” proposed alternative GHG rule. That would be “the worst mistake they could make.”
But the source agrees that the ANPR strategy carries the downside of taxing the court's patience, given that the D.C. Circuit held an extraordinary en banc oral argument in the litigation over the rule.
“The agency has been saying . . . we are working on it. The danger point” is a situation where you are seen as “not working on it,” the source says.
Some have speculated that the ANPR approach might be tied to rumors that Pruitt is considering a run for Senate in his home state of Oklahoma in 2020, and the industry source agrees that it may give him some hedge to avoid committing to GHG controls.
But the source says that any such flexibility is likely relevant only in the very short term, and that if Pruitt remains at EPA well into 2018 and beyond, “you need to have a legally sound approach” on power plant GHG regulation that you can present to the courts.
Ultimately, the Trump EPA cannot avoid more specifics on the issue, but the ANPR provides a way to “sort through where everybody is.”
https://insideepa.com/daily-news/pruitts-plan-repeal-cpp-poses-legal-risk-epa-due-ghg-mandates
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Brick Industry Backs EPA's Bid To Delay MACT Lawsuit
Oct 17, 2017 | Inside EPA
Brick and tile industry groups are supporting EPA's motion to freeze litigation over the Obama-era maximum achievable control technology (MACT) air toxics standards for the sector while the agency weighs possible changes to the rule, rejecting environmentalists' claims that a delay in the lawsuit would create public health harms.
In an Oct. 13 legal filing, the Brick Industry Association (BIA), Kohler, Co., and the Tile Council Of North America urge the U.S. Court of Appeals for the District of Columbia Circuit to postpone oral argument now scheduled for Nov. 9 and place proceedings into abeyance in Sierra Club, et al., v. EPA, et al.
Environmentalists in the suit are challenging EPA's MACT for brick and clay products manufacturing as too weak, while industry groups say it is too tough.
Environmentalists argue that the Obama-era rule sets a dangerous precedent through its first-time use of “health-based” emissions limits for some pollutants, which are a weaker alternative to traditional technology limits. The Clean Air Act allows health-based limits where EPA can identify a safe threshold of exposure for a pollutant -- but environmentalists say this is not the case with the brick MACT.
However, the Trump EPA is reviewing and possibly reconsidering the Obama rule in response to industry criticisms. The agency is asking the court to freeze proceedings pending its reconsideration.
In their new filing, industry petitioners say, “Because EPA is evaluating the issues raised in this litigation, EPA’s review may moot some or all of the issues the Petitioners have raised. If this Court were to proceed with this case and issue a decision before EPA completes its reevaluation, and if EPA’s administrative action moots some or all of the issues decided by this Court, that decision would need to be vacated.”
Environmentalists in a recent filing opposing a delay in the lawsuit argued that the MACT is too weak to protect public from the sector's air toxics, and that postponing the litigation would prolong the implementation of the existing standard rather than a stricter MACT the groups are trying to win through the case.
But the industry groups reject this claim in their new filing, saying, “[E]ven if the Environmental Petitioners’ issues are not altered by EPA’s review and subsequent rulemaking to revise the Brick MACT Rule, they would not suffer prejudice from the resulting short delay in litigation,” because “EPA has stated it intends to complete its review as expeditiously as possible.”
https://insideepa.com/daily-feed/brick-industry-backs-epas-bid-delay-mact-lawsuit
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