Preview Newsletter
ACC AM 10/19/17
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(ACC Mentioned) The Styrofoam Industry's Sponsored Messaging Needs A Fact Check
Oct 18, 2017 | City & State
By Brad Lander And Antonio Reynoso
Over the last several weeks, residents in the Bronx and other parts of New York City have reported receiving robocalls urging them to call their Council members to tell them to support Intro 1480, a bill that would designate styrofoam as “recyclable.” -
(ACC Mentioned) Trump EPA Nominees On Hold Amid Dispute Over Biofuel Mandate
Oct 18, 2017 | AP (In The Washington Post)
By Michael Biesecker
A Senate committee has delayed consideration of four of President Donald Trump’s nominees for key posts at the Environmental Protection Agency amid opposition to the administration’s proposed reduction in the volume of biofuels blended into gasoline and diesel. -
(ACC Mentioned) Flouting Senate, EPA Chief Installs Chemical Safety Nominee as Senior Advisor
Oct 18, 2017 | Environmental Working Group
Defying the Senate’s authority to confirm presidential nominees, Environmental Protection Agency Administrator Scott Pruitt has installed Michael Dourson, President Trump’s controversial choice to run the agency’s chemical safety office, as a senior advisor. EWG President Ken Cook said it was more proof of Pruitt’s contempt for procedure and transparency. -
(ACC Mentioned) A Controversial Cincinnati Nominee, Not Yet Confirmed, Is Already Working At Trump's EPA
Oct 18, 2017 | USA Today (In Cincinnati.com)
By Deirdre Shesgreen
President Trump’s environmental chief has installed a controversial Cincinnati toxicologist as his top adviser--at least temporarily bypassing Senate confirmation for a nominee Democrats fiercely oppose. -
Dem Senator Slams Trump EPA Nominee For Starting Work Before Confirmation
Oct 18, 2017 | The Hill - E2 Wire
By Josh Delk
Sen. Kirsten Gillibrand (D-N.Y.) slammed the Trump administration for what she called a "terrible nomination" for a top position in the Environmental Protection Agency (EPA), saying the pick, who already works for the agency, may have large conflicts of interest. -
Longer, Costlier Legal Battles Ahead as EPA Vows No Settling
Oct 19, 2017 | BNA Daily Environment Report
By Jennifer Lu
EPA Administer Scott Pruitt's refusal to settle environmental lawsuits means longer and more expensive legal battles, observers say. -
EPA Leaders Grapple With Where To House TRI In OPPT Reorganization
Oct 18, 2017 | Inside EPA
By Maria Hegstad
As they weigh options for reorganizing the Office of Pollution Prevention and Toxics (OPPT), EPA toxics office leaders are grappling with where to house the Toxics Release Inventory (TRI) program, which provides critical data on facilities' annual pollution releases, given the new responsibilities the office must shoulder under the revised Toxic Substances Control Act (TSCA). -
Phthalates to Be Banned From Kids’ Products Under New Rule
Oct 19, 2017 | BNA Daily Environment Report
By Martina Barash
Government regulators approved a rule banning eight phthalates in toys and other children's products Oct. 18 due to concerns that they negatively affect human health, including male reproductive development. -
Amazon, Samsung Failing To Address Hazardous Chemicals, Says Greenpeace
Oct 19, 2017 | Chemical Watch
By Leigh Stringer
The US arm of Greenpeace has ranked 17 of the world's largest electronics brands on their efforts to address hazardous chemicals in the products they sell. -
Trade Body Questions European Commission Over UK Microbeads Ban
Oct 19, 2017 | Chemical Watch
By Vanessa Zainzinger
UK cosmetics trade association CTPA has asked the European Commission to clarify whether Britain's proposed ban on plastic microbeads in cosmetic products complies with EU law. -
(ACC Mentioned) Hurricane Harvey Highlights Fossil Fuel And Petrochemical Loopholes
Oct 18, 2017 | The Daily Score
By Tarika Powell
When Hurricane Harvey slammed into coastal Texas, it demonstrated why we plan for worst case scenarios. It turned 33 of the state’s counties into federal disaster areas, knocked out power for nearly 300,000 residents, and shredded the appearance of safety at a range of oil, gas, and chemical sites. -
GOP Senators Introduce Bill To Speed Small Exports
Oct 19, 2017 | E&E Daily
By Sam Mintz
Two Republican senators from the Gulf Coast launched legislation this week that would expedite Department of Energy approval for small liquefied natural gas exports. -
FERC’s Chatterjee Calls for Shorter NatGas Pipeline Permitting Process
Oct 18, 2017 | Natural Gas Intelligence
By Charlie Passut O
FERC Chairman Neil Chatterjee said he wants to see the Commission significantly reduce its review process for natural gas pipelines, and described the Department of Energy (DOE) proposal to provide reliability and resiliency compensation to coal and nuclear baseload generators as "a conversation we need to have." -
Volatile Debate
Oct 18, 2017 | Inlander
By Samantha Wohlfeil
Every day, several trains hauling coal or crude oil move through downtown Spokane on elevated tracks. -
Practitioner Insights: California Tackles Climate Change
Oct 19, 2017 | BNA Daily Environment Report
By Shannon S. Broome and Clare Ellis
Almost immediately after President Trump announced his decision to withdraw the U.S. from the Paris climate agreement, states and localities launched their own independent initiatives to meet the Obama administration's commitment to reducing greenhouse gas emissions. Businesses also chimed in, with leaders of several U.S. corporations announcing their intent to collaborate in furthering the spirit—if not the letter—of the Paris agreement. -
Rule Critics Urge Court To Reject Calls To Review HFC Measure's Overturn
Oct 18, 2017 | Inside EPA
By Lee Logan
Chemical companies opposed to an EPA rule that curbs the use of refrigerants that act as potent greenhouses gases are urging an appellate court not to reconsider its ruling that vacated the measure, arguing EPA might revise the rule due to the Trump administration's climate policy stance and that the agency has various other options to limit the chemicals.
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(ACC Mentioned) The Styrofoam Industry's Sponsored Messaging Needs A Fact Check
Oct 18, 2017 | City & State
By Brad Lander And Antonio Reynoso
Over the last several weeks, residents in the Bronx and other parts of New York City have reported receiving robocalls urging them to call their Council members to tell them to support Intro 1480, a bill that would designate styrofoam as “recyclable.”
Hopefully, whenever New Yorkers receive robocalls, they know to ask, “Who paid for it?”
In this case, it is very likely that the plastic and styrofoam industry are behind the calls, under the guise of the Restaurant Action Alliance, a group sponsored by the American Chemical Council, a lobbying group that represents the nation’s largest chemical manufacturers, including the manufacturers of – you guessed it – Styrofoam.
But these sponsored robocalls do not tell the whole story.
We love recycling. But “designating” Styrofoam as “recyclable” by legislation does not actually mean it will be recycled – because recycling Styrofoam is simply not feasible. After a two-year exhaustive study, the New York City Department of Sanitation concluded that Styrofoam could not be recycled in an economically efficient and environmentally feasible manner. It will wind up in landfills, where it will remain, literally, forever.
Here’s why: Styrofoam food service containers are usually covered in oil and grease, making them nearly impossible to clean. Dirty food-service foam has no re-sale value in the manufacturing market, so recyclers will not accept it. Even if containers start out clean (even unused), once they are in the waste stream they soak up the dirt and grease of material around them (styrofoam is very porous). So recyclers treat all foam as contaminated. With no buyer, New York City would get stuck with the material and ultimately have no choice but to send it to landfill--where again, it will never decompose, and instead break into pieces, blow around, and get into our rivers, oceans and be eaten by wildlife.
Allowing food service foam containers to be put into the recycling stream actually contaminates truly recyclable material, like paper. Food service foam is very lightweight and gets easily blown around recycling facilities. It flattens in commingled recycling and can be accidentally sorted as paper in the sorting process, which devalues the paper bales and increases recycling costs.
Finally, simply designating the foam as recyclable instead of banning it altogether will mean that diesel trucks continue to travel through the neighborhoods overburdened with waste processing facilities where, not coincidentally, asthma rates are highest.
The City Council passed a law in 2013 that banned Styrofoam food containers, but the foam industry snuck loopholes into the final version, which has enabled them to fight and delay implementation. Meanwhile, they continue to profit from selling their environmentally harmful product. The phony recycling bill known as Intro 1480 is just one more part of their con.
If we actually want to achieve our “zero waste” goals for New York City, we should simply ban Styrofoam outright – as we have proposed in Intro 1596. Banning Styrofoam will make our city cleaner, reduce waste to landfill (since plastic container alternatives can be reused or recycled), protect wildlife and reduce truck trips through low-income neighborhoods.
That’s why at least fifty-five environmental advocates in New York City have come out in opposition to “phony recycling” and in support of our bill to ban it. In addition to these advocates, over 75 food service establishments and small businesses joined these advocates in support of the ban
So it really comes down to this: Whom are you going to believe? The entire environmental and recycling community? The 75-plus small businesses that support the Styrofoam ban? Or the for-profit corporations who profit from making and selling Styrofoam?
Brad Lander represents the 39th City Council District in Brooklyn. Antonio Reynoso represents the 34th Council District in Brooklyn.
http://cityandstateny.com/articles/opinion/the-styrofoam-industrys-sponsored-messaging-needs-a-fact-check.html
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(ACC Mentioned) Trump EPA Nominees On Hold Amid Dispute Over Biofuel Mandate
Oct 18, 2017 | AP (In The Washington Post)
By Michael Biesecker
WASHINGTON — A Senate committee has delayed consideration of four of President Donald Trump’s nominees for key posts at the Environmental Protection Agency amid opposition to the administration’s proposed reduction in the volume of biofuels blended into gasoline and diesel.
A meeting of the Senate Committee on Environment and Public Works set for Wednesday was postponed after a bipartisan group of 33 senators urged EPA Administrator Scott Pruitt to change his position on the Renewable Fuel Standard. Pruitt has proposed targets for 2017 and 2018 set slightly below current levels following a push by oil companies to ease mandates on using ethanol from corn and soybeans.
Three of the 11 Republicans on the committee signed the letter urging Pruitt to change his position. With Democrats saying they will oppose Trump’s picks, the defection of just one of the committee’s Republicans could torpedo a nominee.
GOP Sen. Joni Ernst of Iowa said Wednesday she was not prepared to support the nomination of Bill Wehrum, Trump’s choice to lead the EPA’s Office of Air and Radiation. If confirmed, Wehrum would oversee the Renewable Fuel Standard.
Ernst questioned Wehrum about his position on the biofuels mandate in a hearing earlier this month.
“Following his confirmation hearing, I expressed concern with the answers he gave, and told the committee I wasn’t comfortable supporting him at that time due to his answers and recent actions by the EPA which had the potential to weaken or undermine the RFS,” Ernst said.
Wehrum is a lawyer in private practice whose clients have included pro-fossil fuel groups opposed to mandated reductions of planet-warming carbon emissions — including the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and the American Chemistry Council.
Democratic Sen. Tammy Duckworth of Illinois said Wednesday she would place a hold on the nominations of Wehrum and Michael Dourson, Trump’s pick to lead EPA’s Office of Chemical Safety and Pollution Prevention.
A hold is an informal practice by which a senator can delay, at least temporarily, a nomination or piece of legislation from coming to a vote by signaling that he or she may filibuster any motion to consider the measure.
The Associated Press and other media outlets reported last month that Dourson has for years accepted payments for criticizing studies that raised concerns about the safety of his clients’ products. Past corporate clients of Dourson and a research group he ran include Dow Chemical Co., Koch Industries Inc. and Chevron Corp.
A staunch supporter of the biofuels program, Duckworth said she had seen firsthand the price the nation pays for its dependence on oil imported from foreign adversaries. The retired U.S. Army lieutenant colonel lost her legs during the Iraq War when her Black Hawk helicopter was brought down by enemy fire.
“Mr. Wehrum’s history of attacking the biofuels industry and his refusal to recuse himself from RFS-related issues despite his well-documented conflicts of interest should alarm all of my colleagues,” Duckworth said. “Any senator who supports the RFS program, our farmers and our commitment to the environment and energy dependence must oppose his nomination.”
https://www.washingtonpost.com/politics/whitehouse/trump-epa-nominees-on-hold-amid-dispute-over-biofuel-mandate/2017/10/18/cf157172-b43a-11e7-9b93-b97043e57a22_story.html?utm_term=.77ff64a0edc4
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(ACC Mentioned) Flouting Senate, EPA Chief Installs Chemical Safety Nominee as Senior Advisor
Oct 18, 2017 | Environmental Working Group
WASHINGTON – Defying the Senate’s authority to confirm presidential nominees, Environmental Protection Agency Administrator Scott Pruitt has installed Michael Dourson, President Trump’s controversial choice to run the agency’s chemical safety office, as a senior advisor. EWG President Ken Cook said it was more proof of Pruitt’s contempt for procedure and transparency.
The Senate Environment and Public Works Committee, which has the authority to vet all EPA political nominees before they are confirmed by the full Senate, has not yet voted on Dourson’s nomination, E&E Newsreported today. The committee vote was scheduled for today, but was abruptly cancelled after the EPA acknowledged that Dourson is already on the job.
It is not unprecedented to bring presidential nominees into agencies before confirmation, but Dourson is a particularly divisive nominee. Organizations representing millions of Americans have expressed concern or opposition to the nomination, citing Dourson’s history of working on behalf of the chemical industry to weaken regulations.
“The only thing Michael Dourson should be doing inside EPA headquarters before he’s confirmed is visiting as a tourist,” Cook said. “Scott Pruitt clearly sees the established role of Senate oversight on nominees as a bothersome technicality he can disregard at will. This is more proof of his contempt for transparency and the longstanding rules of checks and balances between the legislative and executive branches.”
Dourson has spent more than two decades as a scientist-for-hire for major chemical and pesticide companies, including Dow, Monsanto and Koch Industries, and the lobbying groups CropLife America and the American Chemistry Council, among others.
He and his consulting firm Toxicology Excellence for Risk Assessment, or TERA, have repeatedly argued that the safe exposure levels to highly toxic chemicals are hundreds or thousands of times higher than what independent scientists and the EPA consider safe. As head of the office of chemical safety, he would make crucial decisions on many chemicals he has defended for the industry.
“Whether Republican or Democrat, senators should not stand for this blatant end-run around their authority,” said Cook. “Dourson has been nominated for a very powerful role to protect the public from toxic chemicals, and the decision of whether he’s fit for the job rests not with Scott Pruitt, but with the 100 senators elected by the American people.”
http://www.ewg.org/release/flouting-senate-epa-chief-installs-chemical-safety-nominee-senior-advisor#.WehbEluCyUk
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Oct 18, 2017 | USA Today (In Cincinnati.com)
By Deirdre Shesgreen
WASHINGTON—President Trump’s environmental chief has installed a controversial Cincinnati toxicologist as his top adviser--at least temporarily bypassing Senate confirmation for a nominee Democrats fiercely oppose.
The move enraged environmental groups and irked Democrats, who were hoping to tank the Cincinnati candidate’s confirmation to lead the Environmental Protection Agency’s chemical safety and pollution prevention office.
At the center of this firestorm is Michael Dourson, a University of Cincinnati professor and Trump’s divisive pick for the chemical safety post. Dourson endured a brutal confirmation hearing earlier this month; his nomination is currently pending before the Senate Environment and Public Works Committee.
But even as he awaits a vote, EPA Administrator Scott Pruitt has hired Dourson to be one of his top advisers, said Jahan Wilcox, an EPA spokesman. The news was first reported by E&E News, an energy and environment publication.
“The only thing Michael Dourson should be doing inside EPA headquarters before he’s confirmed is visiting as a tourist,” said Ken Cook, president of the Environmental Working Group, an advocacy and research group.
In previous administrations, including during President Obama's tenure, nominees have been tapped for advisory roles at federal agencies as they awaited confirmation. But Dourson is particularly contentious, and his confirmation by the full Senate is not assured.
Before news broke of Dourson's installation at EPA, Sen. Tammy Duckworth, an Illinois Democrat, placed a “hold” Wednesday on Dourson’s nomination, saying he has put “corporate profits ahead of public safety.”
Under Senate rules, Duckworth cannot prevent a vote on Dourson indefinitely. But her “hold” is a procedural maneuver that will make it harder and more time consuming for Republicans to get a full Senate vote on Dourson’s nomination.
“It slows it down, it draws more attention” to his nomination, Duckworth told the Enquirer. “I’m sending a message that there’s a problem with this candidate.”
Dourson has come under intense fire from Senate Democrats and environmental groups for research they say endorsed dangerous levels of chemicals and pesticides in the nation’s crops, drinking water and other products.
Dourson has operated a nonprofit research foundation, called the Toxicology Excellence for Risk Assessment, which has taken money from an array of major chemical companies and industry groups, including DuPont, Monsanto, and the American Chemistry Council.
During his tense confirmation hearing, Dourson defended his work, saying he’s always been objective and has let the science dictate his findings.
“I will dedicate my mind, body and spirit to the work of this office,” Dourson told the Senate Environment and Public Works Committee during the Oct. 4 hearing. He promised to protect “the American public, including its most vulnerable” and to be impartial in his decisions.
During that session, Duckworth grilled Dourson about his research, funded by Koch Industries, into the health effects of petroleum coke on a community in Chicago. Duckworth asked him whether he agreed with EPA’s current assessment that dust from petroleum coke presents a health risk.
He declined to give her a direct answer.
“This man used fake pseudo-science to justify putting more pet coke into the atmosphere in southern Chicago and that hurt my constituents,” Duckworth told the Enquirer on Wednesday.
The top Democrat on the committee said he was troubled by Pruitt's move to hire Dourson before the Senate had taken action.
“During the hearing to consider his nomination, my colleagues and I expressed our grave concerns about Michael Dourson," said Sen. Tom Carper, D-Del. "Everything I’ve learned about him since then has underscored those concerns, and I find his current, unconfirmed role at EPA to be no less troubling.”
Cook, of the Environmental Working Group, was more blistering.
“Scott Pruitt clearly sees the established role of Senate oversight on nominees as a bothersome technicality he can disregard at will," Cook said. "This is more proof of his contempt for transparency and the longstanding rules of checks and balances between the legislative and executive branches.”
It's not clear if Dourson has officially left his position at the University of Cincinnati. An email sent to his address there on Wednesday was returned with a "delivery failure" notice. A UC spokeswoman did not immediately respond to an email and phone message requesting comment.
http://www.cincinnati.com/story/news/politics/2017/10/18/democrat-tries-block-confirmation-controversial-university-cincinnati-prof-trump-epa-post/774462001/
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Dem Senator Slams Trump EPA Nominee For Starting Work Before Confirmation
Oct 18, 2017 | The Hill - E2 Wire
By Josh Delk
Sen. Kirsten Gillibrand (D-N.Y.) slammed the Trump administration for what she called a "terrible nomination" for a top position in the Environmental Protection Agency (EPA), saying the pick, who already works for the agency, may have large conflicts of interest.
Gillibrand said in a statement Wednesday that she was "stunned" when she learned that Michael Dourson, President Trump's nominee to head the EPA's Office of Chemical Safety and Pollution Protection, was already serving as an unpaid adviser to EPA Administrator Scott Pruitt.
“The fact that he has already begun advising the EPA administrator shows contempt for the committee’s role in his nomination process and more importantly a profound disrespect to the families who are terrified about what toxic chemicals are going to do to their children’s health," Gillibrand said, calling for the EPA to cut ties with Dourson until the Senate could vote on him.
Gillibrand, who serves on the Senate Environment and Public Works Committee that will vote on Dourson, cited his past work in the chemicals industry at the Toxicology Excellence for Risk Assessment group. Dourson's opponents say the group's research reached beneficial conclusions on chemicals that were out step with other scientists.
“There is no way around it. Michael Dourson has spent his career helping chemical companies cover up deadly chemical contamination. His record of greenwashing the actions of chemical companies and placing their profits over the health and well-being of children is appalling," the environmentally conscious senator said.
Other Democrats have criticized Dourson, as well. Sen. Tammy Duckworth(D-Ill.) said Wednesday she would place a hold on his nomination and another EPA nominee because of their backgrounds working as advocates for the industries they would be overseeing.
The EPW committee was due to vote on Dourson on Wednesday, but Republicans delayed the hearing on Tuesday night. Chairman John Barrasso (R-Wyo.) said a vote could come next week.
http://thehill.com/blogs/blog-briefing-room/356093-dem-senator-slams-trump-nominee-for-doing-epa-work-before-being
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Longer, Costlier Legal Battles Ahead as EPA Vows No Settling
Oct 19, 2017 | BNA Daily Environment Report
By Jennifer Lu
EPA Administer Scott Pruitt's refusal to settle environmental lawsuits means longer and more expensive legal battles, observers say.
Environmental groups often sue the Environmental Protection Agency when it misses a legal deadline to take action or review existing pollution standards, and cases tend to be open-and-shut against the EPA, they say. Rather than go through a lengthy court battle in these situations, settling saves time and resources.
“The settlement process is quite efficient from everybody's standpoint,” Hope Babcock, director of the Institute for Public Representation Environmental Law Clinic at Georgetown University, told Bloomberg Environment.
Pruitt announced Oct. 16 that the EPA would no longer settle court cases brought by environmental groups seeking to force the agency to take overdue actions.
If the government pursues litigation to the end, it will also have to shell out for the prevailing party's attorney fees, Justin Savage, a partner in Sidley Austin LLP's Washington, D.C., office, told Bloomberg Environment. Savage was a senior trial attorney at the Justice Department between 2004 and 2013.
“If you're on the hook for attorneys’ fees, it's better to settle your way out than fight over it,” Savage said.
One-Way Lever
Given that litigation can be a more expensive option for the agency, Pruitt's umbrage over the practice, known as sue-and-settle, may be less about settling lawsuits and more about avoiding environmental policies he doesn't like, Coby Dolan, senior legislative counsel at Earthjustice, told Bloomberg Environment.
For one thing, the EPA doesn't settle as often as Pruitt makes it seem, Dolan said.
In fiscal year 2016, the EPA settled nine of the 71 cases in which it was a defendant, according to the Justice Department's annual statistical report.
The agency also has no qualms about settling with industry groups, Dolan said. “A lot of this feels like show, claiming a problem that doesn't really exist.”
In May, the EPA settled with Pebble Limited Partnership over a lawsuit filed over a proposed gold, copper and molybdenum mine in Alaska's Bristol Bay. The partnership, a wholly owned subsidiary of the Canada-based Northern Dynasty Minerals Ltd., had argued the Obama administration colluded with three federal advisory committees to arrive at a predetermined conclusion that handicapped the proposed mine.
While industry groups also sue the EPA, they aren't trying to force the agency to enforce rules, Dolan said, but to prevent it from taking action.
“It's a one-way lever,” Dolan said. It makes “the playing field a lot less even.”
Kieran Suckling, executive director at the Center for Biological Diversity, said that litigating everything would take EPA staff away from environmental research and protection, with environmental groups suing the agency getting blamed for the holdup.
“It'll bog everything down,” Sucking said. “The whole thing is completely cynical.”
Who Decides to Settle?
Savage said he wanted further clarification from the EPA about its directive, which said that the EPA should seek approval from states and industry stakeholders before agreeing to a consent decree or settlement. That's a decision that should be made by the EPA and Justice Department, he said.
“It sends a signal that client agencies of the department get to make the call whether to settle or litigate,” Savage said. “And that's just not how it works under the law.”
William Yeatman, a senior fellow at the free market advocacy group Competitive Enterprise Institute, told Bloomberg Environment that legal deadlines were the underlying problem behind sue-and-settle. Because the EPA missed so many deadlines, it has to funnel energy and resources into addressing its deadlines.
“The sue-and-settle is a means for environmental groups to dictate the agency's priorities,” Yeatman said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122778917&vname=dennotallissues&fn=122778917&jd=122778917
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EPA Leaders Grapple With Where To House TRI In OPPT Reorganization
Oct 18, 2017 | Inside EPA
By Maria Hegstad
As they weigh options for reorganizing the Office of Pollution Prevention and Toxics (OPPT), EPA toxics office leaders are grappling with where to house the Toxics Release Inventory (TRI) program, which provides critical data on facilities' annual pollution releases, given the new responsibilities the office must shoulder under the revised Toxic Substances Control Act (TSCA).
In a new document obtained by Inside EPA, the office's leaders describe the pros of three different proposals for reorganizing OPPT with the major differences being the placement of the TRI program.
The Oct. 12 document describes OPPT leadership's “supporting rationale” for the various options officials are considering for reorganizing the office to better implement the revised TSCA law. It follows the release of a series of straw proposals, released internally late last month for staff comment along with a memo from OPPT Director Jeff Morris.
Key among the major changes to the existing organizational structure is a plan to consolidate OPPT's seven current divisions into five, according to diagrams circulated within the agency.
And as first reported by Inside EPA, Morris' memo explains that the June 2016 enactment of the TSCA reform law, and its many new requirements for EPA, is the driver for making major changes to OPPT, which is the office responsible for implementing TSCA.
Morris has requested staff comments by Dec. 1 on three different proposals for how branch offices will be organized within the five new divisions. There are few differences among the three plans, with the major difference appearing to be the placement of the TRI program.
Different proposals envision placing it as its own branch within one of two new divisions, or splitting it between two branches, according to the new rationale document.
The first of the three proposals would split the existing TRI division between two branches in a new division, to be called the Data, Analysis & Strategic Engagement Division. The rationale document explains that this would increase collaboration with other OPPT data collection and management programs, such as the Chemical Data Reporting program (CDR) and the online chemical information dashboard set up by the Obama administration known as ChemView.
Combining the different data collection programs would “gain efficiencies in regulatory and guidance development, data analysis, and information dissemination and outreach,” the document states.
The document explains that in this proposal, a branch within the division would be responsible for collection through both TRI and CDR, by writing the rules and guidance; a second branch would be tasked with all chemical data coming in to OPPT; and a third branch would be responsible for working with “internal and external stakeholders to identify interest in OPPT data and best (effectively, efficiently) make those data available.”
'Maximize' The Benefits
The document explains that this approach is intended to “maximize the effectiveness, leverage, and synergies across the three statutes led by OPPT (TSCA, [Pollution Prevention (P2) Act], [Emergency Planning and Community Right-to-Know Act (EPCRA)]) that all have elements of analysis, outreach, innovation, industry engagement, and mandatory data collection; the structure is intended to be robust enough to allow the Division to thrive as circumstances change, with the inevitable adaptations and scaling that come with potential changes in budget, policy, and/or priorities.”
The document appears to acknowledge a downside to this approach, stating that “[i]ntegration of function (TRI, CDR, and Chemview) requires continuing leadership commitment to the TRI 'brand,' given its importance in providing chemical information to a wide range of community stakeholders.”
The second proposal, called straw B, maintains TRI as its own branch in another proposed division, called the Existing Chemicals Division. The rationale document describes the advantages of this approach as leveraging “opportunities for efficiencies, given the functionally similar activities with the TRI program and the Existing Chemicals Division, particularly regarding rulemakings” such as expanding the list of chemicals and industrial sectors that must report to TRI annually.
Including TRI in this division will make it easier to share TRI data with risk management branches as they work to prioritize and assess chemicals, the document indicates. The document adds that if the new Existing Chemicals Division's risk management branches identify chemicals with data gaps as staff are beginning to prioritize chemicals for future assessment, having TRI within the division makes it easier to evaluate the chemicals “for addition to TRI to help fill some of the gaps on releases and other waste management.”
The third proposal, titled straw C, maintains TRI as a separate branch, but places it within the new Data, Analysis & Strategic Engagement Division.
The document explains, “The TRI Program is a mature information disclosure program . . . at this point in the TRI Program’s evolution, placement of the TRI Program in the Data Analysis Division makes sense.”
The document adds that the benefits of maintaining TRI as a discrete branch, as proposed in straw B and straw C, include easier coordination with TRI Information Technology personnel who remain within another program office, the Office of Environmental Management, TRI's original home before its move to the toxics office in February 2016.
Another concrete example is the document's statement that “TRI dedicated funding will be easier to allocate if TRI remains an intact, discrete organizational unit.”
The document adds that “TRI’s mission as an information collection program has a broader focus on disclosure to external stakeholders . . . than CDR and other data collection programs primarily intended to inform EPA” and this difference in mission may be a reason not to integrate TRI with other data collection branches. “Keeping TRI as an intact, named organizational unit may send a stronger signal to external stakeholders that TRI plays an important role in EPA’s mission to protect human health and the environment.”
https://insideepa.com/daily-news/epa-leaders-grapple-where-house-tri-oppt-reorganization
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Phthalates to Be Banned From Kids’ Products Under New Rule
Oct 19, 2017 | BNA Daily Environment Report
By Martina Barash
Government regulators approved a rule banning eight phthalates in toys and other children's products Oct. 18 due to concerns that they negatively affect human health, including male reproductive development.
The Consumer Product Safety Commission rule includes the chemical diisononyl phthalate (DINP) among the phthalates that must not appear in concentrations greater than 0.1 percent. DINP was the focus of significant lobbying, particularly by DINP maker Exxon Mobil Corp., some commissioners said at the decisional meeting.
The panel passed the final rule by a 3–2 vote along party lines. Democrats are currently a majority on the commission.
Phthalates make polyvinyl chloride (PVC) and vinyl “flexible and pliant,” according to the American Chemistry Council's website.
The rule, long under development, covers three phthalates already prohibited by the Consumer Product Safety Improvement Act, according to CPSC staff briefing materials on the final rule.
The rule makes an interim statutory ban on DINP permanent and prohibits four other phthalates that an advisory panel recommended be discontinued in kids’ products.
Meanwhile, it lifts a CPSIA interim ban on two other phthalates, following the recommendation of the advisory panel.
Some commissioners who voted for the rule pointed to the strong statutory language in the CPSIA, particularly its call for a “reasonable certainty of no harm” to pregnant women and children for phthalates allowed to remain in children's products.
The harm from phthalates is serious, Commissioner Robert Adler (D) said in a statement following the vote. Congress wanted to “walk the extra mile” to protect children, he said.
Commissioner Marietta Robinson (D) described the 2008 legislation's phthalate provisions as progressive and protective, and said Congress expected the CPSC to move quickly on the issue.
Chairman Ann Marie Buerkle (R), who voted against the measure, said the interim prohibition on DINP should have been lifted, not made permanent. She said weaknesses plagued the science supporting the ban.
In addition to DINP, the phthalates prohibited in children's toys or child care articles in concentrations greater than 0.1 percent are abbreviated DEHP, DBP, BBP, DIBP, DPENP, DHEXP, and DCHP, according to the briefing materials.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=122778926&vname=dennotallissues&fn=122778926&jd=122778926
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Amazon, Samsung Failing To Address Hazardous Chemicals, Says Greenpeace
Oct 19, 2017 | Chemical Watch
By Leigh Stringer
The US arm of Greenpeace has ranked 17 of the world's largest electronics brands on their efforts to address hazardous chemicals in the products they sell.
In its Guide to greener electronics, Greenpeace places Amazon and Samsung – along with Chinese companies Xiaomi, Vivo and Oppo – at the bottom of the ranking. All but Samsung, which received a D- grade, were rated F. This is largely because they have not phased out brominated flame retardants (BFRs) and polyvinyl chloride (PVC), or publicly disclosed information on their management of chemicals, it says.
According to the guide, companies, including Acer, Apple, Samsung, LG, Lenovo, Dell and Hewlett Packard made commitments in 2009 and 2010 to phase out PVC and BFRs from their products. Today, it said, only Apple and Google are free of BFRs and PVC across their product lines. Apple is at the top of the list with a B grade.
Ranked after Apple with a B-, Dutch-based social enterprise, Fairphone, has phased out PVC entirely and is working on phasing out BFRs and phthalates, according to the guide. Founded in 2013, the company has made good progress in a short time frame, it said.
Regulatory measures are being taken on some brominated flame retardants, such as decaBde and HBCD. Both have been added to Annex A of the UN's Stockholm Convention on persistent organic pollutants, which requires signatories to the treaty to eliminate their production and use. The US EPA has also listed them for "rapid regulatory action" under the reformed TSCA.
In 2015, phthalates DEHP, BBP, DBP and DiBP – used as softeners for PVC – were added to the EU Directive on the restriction of hazardous substances (RoHS2) in electrical and electronic equipment.Transparency
Lack of transparency and monitoring of workplace chemicals are also highlighted as particular problems in the sector.
"To eliminate hazardous releases to the environment from manufacturing facilities and also to protect worker health and safety, all companies in the guide have work to do to identify and eliminate hazardous chemicals used in the production of their products, improve worker health and safety due diligence, and develop safe substitutions," Greenpeace said.
The guide found that Apple, Dell, Google, HP and Microsoft are the only companies ranked that publish their list of substances that must be restricted in the manufacturing of their devices (MRSL).
"Across the sector, there is need for follow-through on commitments to product detox as well as greater transparency and ambition in terms of managing process chemicals, including finding safe substitutions," the guide says.
Amazon, Samsung, Xiaomi, Vivo and Oppo did not respond to Chemical Watch’s request for comment on the guide by the time of publishing.
Last year, Amazon came bottom of a "report card" – released by US NGO Safer Chemicals Healthy Families – ranking US retailers' actions to eliminate toxic chemicals.
Earlier this month, Greenpeace warned that its 'Detox' campaign efforts could be ruined by a premature circular economy.
It said in a report that without eliminating the use and releases of harmful chemicals from production chains, "the circular dream could well become a toxic recirculation nightmare".
https://chemicalwatch.com/60199/amazon-samsung-failing-to-address-hazardous-chemicals-says-greenpeace
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Trade Body Questions European Commission Over UK Microbeads Ban
Oct 19, 2017 | Chemical Watch
By Vanessa Zainzinger
UK cosmetics trade association CTPA has asked the European Commission to clarify whether Britain's proposed ban on plastic microbeads in cosmetic products complies with EU law.
The UK government published a draft law last month that will ban the manufacture of rinse-off cosmetics containing microbeads by the end of this year.
Although it says it supports the proposal, CTPA questions whether the UK can, as an EU member, ban both the sale and manufacture of such products.
"It is not clear whether the UK... has such powers when other member states have not themselves introduced a ban on those same products," the trade body says.
"It is a very important matter of principle that any government acts within the law and that any attempt to do otherwise is challenged."
CTPA appealed to the Commission through the Technical Regulation Information System (Tris), an EU mechanism that prevents single market access barriers from being introduced into the internal market by individual member states.
A commenting period on the UK draft legislation ended on 15 October. In it, environment ministry Defra sought evidence of the effect of other sources of microplastics on the marine environment. This could inform future legislative action, it said.
CTPA said that the cosmetics industry has already phased out solid microbeads from rinse-off cosmetics voluntarily, ahead of any legislation.
"The European cosmetics industry has now virtually completed the removal of solid plastic microbeads from cosmetic products and, regardless of the outcome of the investigation by the European Commission, solid plastic microbeads will not be reintroduced into any cosmetic products in the future," said CTPA director-general, Chris Flower.Initiatives elsewhere
While the Commission has taken no steps towards implementing an EU-wide ban on microbeads in cosmetic products, it held a public consultation on policy options to reduce microplastics entering the marine environment. It ended on 16 October.
A report contaitning conclusions and recommendations is expected by the end of the year.
Meanwhile, Belgium has notified its own draft plan to voluntarily phase out microplastics in all consumer products by 2019. The ban would initially apply to cosmetics and toothpaste.
This follows other EU countries that are taking action against microplastics. France will prohibit rinse-off cosmetics containing microplastics from January 2018 and Sweden has proposed to do the same.
https://chemicalwatch.com/60148/trade-body-questions-european-commission-over-uk-microbeads-ban
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(ACC Mentioned) Hurricane Harvey Highlights Fossil Fuel And Petrochemical Loopholes
Oct 18, 2017 | The Daily Score
By Tarika Powell
When Hurricane Harvey slammed into coastal Texas, it demonstrated why we plan for worst case scenarios. It turned 33 of the state’s counties into federal disaster areas, knocked out power for nearly 300,000 residents, and shredded the appearance of safety at a range of oil, gas, and chemical sites.
While the fossil fuel industry has its sights set on making the Pacific Northwest over in the Gulf Coast’s image, Harvey illustrated in alarming relief the importance of robust environmental safeguards, even for scenarios that fossil fuel project backers argue are unlikely. Regardless, the Northwest is highly susceptible to unpredictable and catastrophic earthquakes (not to mention volcanos, security threats, and even the occasional Pacific typhoon) that could rupture pipelines, shut off power for weeks or months, and severely limit emergency response capabilities. Harvey’s aftermath is a prime window for the Northwest to evaluate the risks inherent in the oil and petrochemical industry, and for the region to examine its own preparedness for disaster.
Texas is home to one of the largest concentrations of energy infrastructure in the country. Six counties in Houston are home to 230 chemical plants, 33 oil refineries, and hundreds of miles of pipeline. If any place is equipped to manage fossil fuel safety incidents, it should be here. But Harvey demonstrated just how frail our emergency systems really are: chemical plants and refineries reported more than two dozen major air pollution releases in the period leading up to Harvey and its immediate aftermath.Storage tank failures
One common source of failure during Harvey was so-called “floating roofs” on fossil fuel and petrochemical storage tanks. The roofs are designed to rise and fall depending on the volume within tank, helping control how much of the fossil fuel product is lost to evaporation. A study on the performance of these storage tanks in Texas and Louisiana following the 2005 hurricanes Katrina and Rita found that they are prone to buckling and becoming dislodged during hurricanes. Harvey demonstrated that they may also be prone to collapse.
ExxonMobil: The Baytown refinery and chemical plant on the Houston ship canal is the second largest refinery in the country. The roof on a storage tank partially sank during the storm, dipping below the surface of the chemicals stored within and causing 140 pounds of the carcinogen benzene and toluene to leak into the air as well as over 12,000 pounds of unspecified volatile organic compounds and 240 pounds of the petrochemical xylene.
Shell: Two storage tank floating roofs sank at the company’s Deer Park refinery and chemical plant about twenty miles east of downtown Houston. One roof failure caused crude oil to spill onto the roof and released air emissions. The other released about 40,000 pounds of contaminants into the air. A hole in the roof drainage system on a third tank caused a smaller contaminant leak after the storm was over.
Valero: Valero reported that a floating roof failure at its Harris County facility caused crude oil to leak onto the roof of the tank and into containment areas. The company also reportedthousands of pounds of emissions released as a result of the roof failure, including nearly 2,000 pounds of benzene and more than 92,000 pounds of volatile organic compounds.
Kinder Morgan: Kinder Morgan reported that two floating roofs sank at its Pasadena facility, “causing product to spill.” Nearly 400,000 pounds of hazardous chemicals spilled at the facility. Over 30 petrochemicals, carcinogens, and contaminants leaked as a result of one of the storage tank roof failures, in quantities ranging from 200 to 85,000 pounds each. The second storage tank leaked over 110,000 pounds of volatile organic compounds, in addition to hundreds of pounds of the carcinogen benzene and three thousand pounds of the petrochemicals xylene and toluene.
The company also experienced problems with a floating roof at its Galena Park facility. About 5,000 pounds of crude oil leaked onto the roof and into the containment area of a storage tank. Additionally, an unidentified source released over 76,000 pounds of volatile organic compounds from another tank in the aftermath of the hurricane, leading to a partial facility evacuation.The danger of losing power
Natural gas and petrochemical plants also pose a public safety risk simply by losing electric power. Since many of the gases processed or used at the facilities must be refrigerated, the chemicals pose serious risk of explosion when the refrigeration fails. That’s what happened when the Arkema petrochemical plant in Crosby, Texas lost power and flooding damaged its backup generators. There was no way to prevent the explosion once the facility and generators lost power, and due to safety concerns of trying to fight the fire, 500,000 pounds of organic peroxides burned without intervention. The incident released over 2,000 pounds of carbon monoxide and 3,000 pounds of volatile organic compounds.Pipeline leaks
On August 28, a 14-inch pipeline owned by Williams Companies spewed anhydrous hydrogen chloride for several hours at La Porte, Texas. Once released, the gas mixed with moisture in the air to produce hydrochloric acid, a corrosive that can damage respiratory organs, eyes, skin, and intestines. The pipeline leak triggered a “shelter in place” for residents in the northeast section of the city. “The dangers of being unprepared”
Prior to the storm, the fossil fuel industry was full of empty promises. The American Chemistry Council said: “chemical companies know well to avoid the dangers of being unprepared for any threat.” The American Petroleum Institute said: “our industry has applied lessons from previous hurricanes and developed new technology, best practices, and safety standards.”
Harvey showed that the oil industry’s idea of “best practices” is not good enough, and it offered a stark warning for regions like the Northwest that are considering large-scale expansions of fossil fuel infrastructure and that are prone to an array of natural disasters. A Northwest disaster would of course be different from the hurricane that hit Houston, but would not necessarily be less catastrophic. In fact, the known hazards in the Pacific Northwest are less predictable and more difficult to track than approaching hurricanes, for which we have strong weather models that can provide ample forewarning.
Two areas where the Northwest can improve upon Houston’s failures are shutdown procedures and public notification. Not only did severe weather hamper emergency response in Houston, but advance shutdown procedures brought their own hazards. Facility shut downs produce excess emissions because pollution control devices can’t be operated properly and companies flare numerous chemicals. In fact, Houston’s petrochemical industry intentionally released more than one million pounds of harmful pollution into the air as part of the shutdown process before the above-mentioned accidents even occurred. The results included persistent headaches, nausea, and other illnesses associated with exposure to the chemicals released, which included excess levels of nitrous oxides as well as the carcinogen benzene and 1,3-butadiene, which can damage the lungs and central nervous system. Updating equipment and facility design can help reduce the emissions released by facility shutdowns, and facilities can also lighten the cumulative emissions burden if they don’t wait until the last minute to shut down.
The public did not receive adequate warnings about intentional or accidental chemical releases. Texas residents tweeted about an “unbearable” chemical smell associated with the Exxon leaks for two days before the company disclosed the pollution releases. State agencies had to repeatedly ask fossil fuel companies to check on the status of their facilities. In emergency situations such as Harvey, it is inefficient and impractical for state health regulators to track down each company to obtain this information—-a better approach would be mandatory, daily reporting by facility operators.
It’s also high time that the federal government proactively address chemical leaks and emergency preparedness. Updates to federal regulations on chemical releases have languished for more than two decades, with no updates since 1992. The Chemical Safety Board has unsuccessfully tried to close loopholes for reactive chemicals since 2002, and although the Obama Administration issued stricter rules for chemical plants after a 2013 explosion in West Texas killed 15 people, the Trump administration put those rules on hold for two years in the months before Harvey.
Houston’s disaster should inform policy in the Northwest. Public notification should be standard operating procedure for intentional shut-downs that would generate chemical releases from numerous facilities or even single facilities if they are large-scale operations. Further, we must be prepared to manage releases to the greatest extent possible when disaster strikes. And we should not take our cues from Texas, where the state’s Council on Environmental Quality actually shut down its air quality monitors in the Houston area leading up to the storm and where, at the Council’s request, Texas Governor Greg Abbott suspended more than a dozen state regulations governing air emissions as well as how companies deal with spills and waste. (EPA Administrator Scott Pruitt also signed off on a Clean Air Act waiver on certain fuel requirements for the Texas oil industry in the wake of Harvey.) The Northwest should learn a lesson from Harvey and prepare a better response for disasters that could disrupt an oil refinery, rupture a gas pipeline, or spill petrochemicals into a waterway.
http://www.sightline.org/2017/10/18/hurricane-harvey-highlights-fossil-fuel-and-petrochemical-loopholes/
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GOP Senators Introduce Bill To Speed Small Exports
Oct 19, 2017 | E&E Daily
By Sam Mintz
Two Republican senators from the Gulf Coast launched legislation this week that would expedite Department of Energy approval for small liquefied natural gas exports.
The effort to codify language DOE has already proposed would allow the agency to automatically accept applications to export LNG if they would involve less than 51.1 billion cubic feet per year.
That DOE proposal, introduced on Sept. 1, had a public comment period that closed earlier this week (Greenwire, Aug. 31).
The agency is required by the Natural Gas Act to determine whether exports are "consistent with the public interest," and this legislation — along with the proposed rule — would grant that status to the small exports.
"This bill promotes the growth of American natural gas, creating well-paying jobs with good benefits for hardworking families in Louisiana," said Sen. Bill Cassidy (R-La.), the lead sponsor. "The faster approval of small-scale natural gas shipments will create American jobs, improve Caribbean energy security and lower greenhouse gas emissions."
His co-sponsor, Florida Republican Sen. Marco Rubio, said the legislation would also strengthen the Sunshine State's economy.
"In addition to the economic advantages for Florida, this measure would bolster our existing ties with Caribbean and Latin American nations while ensuring that bad actors in the region, including Cuba and Venezuela, do not reap its benefits," Rubio said.
The DOE rule was backed by natural gas groups, who say such small-scale exports have minimal market effects and environmental impacts.
https://www.eenews.net/eedaily/2017/10/19/stories/1060064037
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FERC’s Chatterjee Calls for Shorter NatGas Pipeline Permitting Process
Oct 18, 2017 | Natural Gas Intelligence
By Charlie Passut O
FERC Chairman Neil Chatterjee said he wants to see the Commission significantly reduce its review process for natural gas pipelines, and described the Department of Energy (DOE) proposal to provide reliability and resiliency compensation to coal and nuclear baseload generators as "a conversation we need to have."
In his first public appearance since being sworn in last August, the Federal Energy Regulatory Commission chairman said he "strongly disagrees" with Commissioner Cheryl LaFleur's lone vote to reject the Atlantic Coast (ACP) and Mountain Valley (MVP) pipelines last week.
"It's been a fast-paced and energetic first two months for me and my team at the Commission," Chatterjee told attendees Tuesday at the Energy Bar Association's 2017 Mid-Year Energy Forum in Washington, DC. "We have already cleared more than 200 orders ahead of our open meeting this week, and we are well on our way to getting through the backlog that accrued as a result of the loss of quorum.
"To be clear, I don't view the efforts I'll discuss today as a drastic change in direction from FERC's previous years of work...That said, the restoration of the quorum and the change in leadership does in my view present an opportunity to bring a fresh perspective to that work."
FERC Not Resting On Its Laurels
Chatterjee said one of the biggest complaints he has heard from stakeholders is the length of time it takes the Commission to review applications to permit infrastructure projects, especially for natural gas pipelines and hydropower. He said the gas pipeline reviews took up to 18 months on average before FERC lost its quorum.
"That's not to say that the Commission doesn't have success stories," Chatterjee said. "Since the quorum was restored, my colleagues and I have voted around 5 Bcf/d of new natural gas pipeline capacity. Still, we won't be resting on our laurels here."
According to Chatterjee, the review process continues to get longer in large part because of increased participation in the process by stakeholders, including numerous legal challenges. "I anticipate that a flashpoint for many of those legal challenges will be the question of economic need for a new natural gas pipeline project," he said.
Case in point, after a multi-year review process that began in the fall of 2015, the Commission ordered certificates allowing the ACP and MVP projects to move forward. Chatterjee said LaFleur, who was in the audience for his keynote speech, had in effect "suggested that FERC should depart from its longstanding policy of relying on precedent agreements with shippers to demonstrate economic need in favor of weighing a broad range of economic, social and aesthetic values.
"Although I very much respect [LaFleur's] position on this question, I strongly disagree. The Commission has historically prioritized precedent agreements in its analysis because those are clear, unequivocal statements of economic need by the market itself. The companies who are willing to enter into contracts to pay for transportation service on a pipeline have a much clearer understanding of the market need for the gas than we could develop through studies in Washington, DC."
The FERC chairman said regulatory uncertainty, created by burdensome delays in the project review process, is problematic for numerous reasons.
"Delays discourage investment in projects. If I were a financial investor or project sponsor, I want predictable cash flows and return, and would be reluctant to put my money toward a project for which there's no predictable length of time for the regulatory review process.” However, “if FERC believes my project is a non-starter, I would prefer to learn that sooner rather than later so I can invest elsewhere."
Delays also harm communities in areas surrounding a project, he said.
"When I look through the dockets for natural gas pipeline proceedings, I see both adverse and supporting comments from concerned citizens in communities near a project," Chatterjee said. "I see comments from union laborers, who recognize these projects as a source of stable jobs for hard-working, middle class Americans. I see comments from residents of struggling small towns who see a pipeline project as a long-term source of tax revenues that they desperately need to fund essential social services. And I see comments from landowners who are concerned that project infringes upon their property rights, as well as comments from activists concerned about environmental impacts.
"FERC owes both sides an opportunity to articulate their position, to have it reviewed thoughtfully by the Commission and ultimately to receive a timely up or down decision. Transparent, predictable decision making helps each of the concerned Americans I described on both sides of the issue. I think we owe it to them provide such a process."
Chatterjee emphasized that FERC is not the principal source of permitting delays.
"No matter how diligent FERC staff is, there are many areas of the project review process that we simply have little control over," he said. "Some delays are created by various other federal or state agencies. Statutory requirements give other agencies significant roles in the licensing processes for natural gas projects.
"Those agencies have different missions and may not be as focused on the permitting process as FERC is. Coordination and consultation with state entities takes time, and as we all know some states can take aggressive positions regarding the scope of their rights on projects."
Incomplete permit applications, coupled with the sheer number of public comments from stakeholders, also contribute to delays in the process.
"While these contributors to delays do not stem from FERC itself, that is not to say that we shouldn't examine our internal project review processes to identify greater efficiencies as well. Given the importance of the pipeline projects that we review, one of the highest values within FERC is continually evaluating areas where there is room for improvement. I'm proud of the efforts we have undertaken already."
Chatterjee said the goals outlined in an executive order (EO) issued by President Trump in late March is consistent with FERC's voluntary review of its actions, and its efforts to identify actions that potentially burden domestic energy use and production. He noted that FERC didn't have to follow the EO.
"FERC is an independent agency, so we didn't have to respond to this EO," Chatterjee said. "We chose to do so because the goals of the EO are consistent with the high premium we place on improvement of the Commission's work. That analysis is still under review, but the Commission will make public its actions related to the EO, as appropriate, based on the EO and the Commission's internal processes."
The chairman cited, among other things, FERC's update of its Guidance Manual for Environmental Report Preparation, and issuing a second manual focused on liquefied natural gas (LNG) projects, both of which were conducted last February.
"While these are all significant improvements, more work remains," he said. "Ultimately, I would like to see FERC significantly reduce its review timelines for major natural gas pipeline certificates and other projects.
"I'm under illusions as to the magnitude of that challenge. It will require us to take an even harder look at our regulations, policies and practices than we have done in the past, and of course it will require an enormous effort from FERC staff already engaged on a number of other critical issues currently facing the Commission.
"Although it would be premature to predict the concrete measures that will emerge from that effort, I envision that one the areas we will be looking at will be our relationships and interactions with other federal and state agencies. Even if legislation is not enacted to make those interactions more efficient, I believe we should pursue understandings that can be reached on an agency-to-agency basis to help improve the review process."
DOE NOPR 'Consistent' With FERC Efforts
Chatterjee said grid reliability is, and will continue to be, FERC's foremost priority. The Commission "facilitates the creation of market structures incenting reliability related investment, monitors and enforces grid reliability within those markets, and provides oversight of reliability standard setting activities.
The DOE notice of proposed rulemaking (NOPR), he said, “fits comfortably within those efforts. I believe there's real value in Secretary [Rick] Perry initiating conversation regarding whether FERC jurisdictional organized markets adequately compensates certain generators for their contribution to the reliability and resilience of the nation's grid. This is entirely consistent with FERC's historical efforts to ensure that organized markets provide necessary compensation for reliability-related services.
"It's a conversation that I believe we need to have. We must ensure that we don't find ourselves coming to regret not having asked hard questions like these amongst all the changes in the energy industry."
Last week, FERC rejected calls from the oil and gas industry and others to extend the public comment period for the NOPR, but it offered no explanation. On the sidelines of Tuesday's conference, LaFleur said the Commission didn't believe it had the authority to change the 60-day deadline set by the DOE.
"I know that the DOE NOPR has caused some to raise concerns regarding the independence of the Commission,” Chatterjee said. “Let me be clear: I remain committed to upholding the Commission's independence on this and in many other issues that may come before us. That's a sentiment that I'm sure my colleagues would firmly agree with."
Cybersecurity, De Novo Review
On the issue of cybersecurity, Chatterjee said "it's no secret that the cyber threats our nation faces are constantly changing day-to-day, even hour-to-hour. It's clear that defending our nation from international cyber threats is one of the most serious challenges of our time. To really protect our nation's critical infrastructure, the federal government must work collaboratively with states and utilities."
The chairman acknowledged that enforcement authority granted to FERC under the Energy Policy Act of 2005 had not come without controversy. One of the main points of contention, he said, has been over the scope of de novo review under the Federal Power Act (FPA). Courts have rejected FERC's interpretation of de novo review five times under the FPA.
"The courts have spoken, and I, for one, am listening," Chatterjee said. "I believe that the proper scope of de novo review is a matter my colleagues and I need to examine so we can chart a new course that is fair and legally defensible."
http://www.naturalgasintel.com/articles/112139-fercs-chatterjee-calls-for-shorter-natgas-pipeline-permitting-process
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Oct 18, 2017 | Inlander
By Samantha Wohlfeil
An oil-train-fueled explosion would devastate Spokane, but is a proposed enforcement method even legal?
Every day, several trains hauling coal or crude oil move through downtown Spokane on elevated tracks.
Depending on who you ask, the trains carry needed energy to create electricity, fuel industry and run our cars, or they do all those things while presenting the risk of a fiery derailment and explosion that could devastate downtown.
On ballots sent out this week, Spokane voters will be asked whether the city should make it a civil infraction for companies to move uncovered coal train cars or untreated crude oil by rail through the city.
The measure is labeled as Proposition 2, even though it's the only proposition on the Nov. 7 ballot for the city of Spokane, because another proposition was challenged in court and removed.
If passed, rail car owners would need to cover their cars full of coal and treat their crude oil to get it to a pressure of 8 psi (pounds per square inch) before shipping it through the city, or face a fine of $261 per car, the same dollar amount for all civil infractions in the city.
Proponents say the measure will increase safety while still allowing trains through the city. Opponents say this type of fix would not only be unenforceable, but would be too expensive.
'WHEN, NOT IF'
Jim Lee is chairman of Safer Spokane, the group that collected signatures to get the measure on the ballot and helped bring the idea forward with City Councilman Breean Beggs, who wrote the measure in his private capacity as an attorney.
When asked why people should support the measure, Lee says it's all about minimizing harm and danger in the city, not about banning oil and coal trains.
"It's a public safety issue, and that is what it's all about as far as we're concerned," Lee says.
While the risks of a fiery train derailment are slim, small derailments happen all the time, Lee says. And when conditions are right when an oil train derails, the consequences can be devastating. In Lac-Mégantic, Quebec, when a crude oil train derailed in that small town's center in July 2013, 47 people were killed; cleanup and repair costs are estimated in the billions of dollars.
"The risk of a derailment with fire and explosion in downtown Spokane is very real and would be very, very catastrophic," Lee says. "It's really a numbers game, kind of a Russian roulette of when, not if, a train will derail in Spokane."
As for coal trains, the campaign wants coal cars to be covered not so much because a coal derailment would be dangerous, but because of concerns that coal dust can degrade tracks over time and increase the risk of an oil train derailment, Lee says.
'IT'S ILLEGAL'
Michael Cathcart, spokesman for the Committee to Protect Spokane's Economy, a group of rail, coal and oil businesses, and other industries and citizens who oppose the measure, says that people should vote against Proposition 2 first and foremost because it's illegal.
"It violates federal law," Cathcart says. "The hearing examiner and the [city council] policy adviser have both said it's illegal, the Center for Justice [Riverkeeper] questions it. ... I'd say it's pretty universally panned in Spokane, based on the fact it's illegal."
If it's passed, Cathcart says the city could face very expensive litigation.
He also argues that in lieu of moving oil and coal by train, the other option would be truck.
"If it could be implemented, which again is a significant question mark, then all that would happen is you take oil and coal, and you move it from the railroad to an alternative transportation source," Cathcart says. "The only alternative that exists currently through Washington state is the highways."
That could put more people at risk because highway crashes are more frequent, and every single oil train would need 280 trucks to replace it, which would also increase greenhouse gas emissions, Cathcart says.
Beggs and Lee say the trucking argument doesn't hold, because it wouldn't happen. Rather than truck the oil from North Dakota or pay the fine, it would make more sense just to stabilize the oil before transportation, they say.
"You would not transport oil 2,000 miles with trucks. They would stabilize it," Beggs says. "The cost of stabilizing would be way cheaper than trying to have 18-wheelers doing it."
Cathcart says his committee's research indicates that psi has little to do with oil's volatility, and to treat it to the levels required by the measure would cost millions of dollars in new infrastructure in North Dakota. He also says that the railroads have indicated if fewer trains were to roll through Spokane, some of the 500 regional railroad jobs would go away.
LOCAL DANGER
Most of the debate around the measure has centered on whether it is even possible for the city to enforce.
"We don't get to as the city of Spokane, nor should we be getting involved in interstate commerce issues," Cathcart says. "If we're going to block a few commodities a few activists in Spokane don't want to move through, what's to stop other communities from blocking other things, like Boeing airplane parts? It can quickly turn into a trade war."
The railroads are common carriers, which means they don't get to choose what they transport, he says. What they have done is invest hundreds of millions of dollars in recent years in infrastructure upgrades on their rail lines in Washington, Cathcart says.
And railroads are regulated at the federal level.
But the version of the measure that voters will decide on is not intended to levy a fine on the railroads, but on the companies that own the rail cars, Beggs says.
Perhaps more important, Beggs says there is still legal room for cities to regulate railroads with "gap filler" regulations until federal rules catch up.
"In the National Railway Safety Act, [Congress] created a gap provision, which says if you've got a unique local danger, and the Department of Transportation hasn't yet promulgated a measure, you can do that as long as it's not too burdensome," says Beggs, who helped with litigation that changed national pipeline regulations following a June 1999 oil pipeline explosion that killed three people in Bellingham. "Instead of industry trying to slow down the federal rulemaking authority, it encourages them to speed it up, so they get a uniform rule."
Safer Spokane argues that because the tracks are elevated through downtown and run over our single-source drinking water aquifer, Spokane has a unique local danger.
Voters will have to decide if the court costs are worth the risk, Beggs says. If the city were to win in court, the legal costs would be maybe $100,000, he guesses, and if the city were to lose and the challengers were awarded legal fees, the cost might be as high as $1 million.
"That's the question voters are going to ask," Beggs says. "Are we going to risk some legal fees for the chance we won't have these explosive oil trains through downtown, or are we OK with the risk?"
https://www.inlander.com/spokane/volatile-debate/Content?oid=6114230
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Practitioner Insights: California Tackles Climate Change
Oct 19, 2017 | BNA Daily Environment Report
By Shannon S. Broome and Clare Ellis
Almost immediately after President Trump announced his decision to withdraw the U.S. from the Paris climate agreement, states and localities launched their own independent initiatives to meet the Obama administration's commitment to reducing greenhouse gas emissions. Businesses also chimed in, with leaders of several U.S. corporations announcing their intent to collaborate in furthering the spirit—if not the letter—of the Paris agreement.
California, a state that prides itself on pioneering efforts in regulating air emissions, has naturally taken a leadership role in this emerging coalition. California's ramped up effort to address climate change raises several interesting legal questions concerning the extent to which sub-national entities may play a role in meeting the objectives of the Paris agreement, namely: What exactly did the Paris agreement require of signatory nations? How might California play a role in furthering the agreement's objectives—even in the face of President Trump's decision to withdraw? What are the legal and practical limitations on California's ability to “abide by” the Paris agreement in the absence of a national commitment to do so?
What Does the Paris Agreement Require?
As a threshold matter, the Paris agreement does not prescribe emissions goals or limits to be achieved by each nation. Rather, it establishes a framework for a multi-national coordinated effort to address climate change, establishing a goal to hold the increase in global average temperature to “well below” 2 degrees Celsius above pre-industrial levels and to limit the global temperature increase to 1.5 degrees Celsius.
Beyond that, the agreement leaves it up to each of its signatory nations to set voluntary targets for reducing their carbon emissions, expressed as “nationally determined contributions” or NDCs. The agreement contemplates that the NDCs will be revised at least every five years, with each revision representing a progression beyond the last NDC. While the agreement sets forth binding procedural rules for the preparation and assessment of NDCs, there is no mechanism for enforcing them. All parties are, however, required to “account for” their NDCs, to provide supporting technical information “necessary for clarity, transparency, and understanding,” and to regularly communicate NDCs for recording in a public registry maintained by the United Nations Climate Change Secretariat. Further, developed countries are obligated to take the lead “by undertaking economy-wide absolute emission reduction targets.”
Given these non-enforceable targets, it has been somewhat surprising to many stakeholders as to why the agreement was lauded as such a remarkable step forward and why its detractors were so vehement in their opposition. It is true that the Paris agreement represents a symbolic commitment and that surely is more than existed previously. At the same time, many have questioned why that commitment is such a significant accomplishment if it cannot be enforced. Perhaps the answer lies partially in the fact that a country that treats its commitments seriously, like the United States does, should be concerned with the apparent lack of consequences to other countries that fail to fulfill their voluntary targets.
In the end, the most prevalent explanation for the “importance” of the Paris agreement has been that it creates momentum for reduction in greenhouse gas emissions and provides a framework for measuring progress toward an agreed-upon goal. Thus, while not approaching everything the proponents of global commitments to address climate change would like, it put climate change front and center in a global conversation with at least voluntary commitments by countries to address the problem. Just as signing onto the Paris agreement was symbolic, stakeholders have noted that withdrawing from the agreement also sends a signal that domestic, national efforts to address climate change by EPA are unlikely to occur in the current administration.
California's Framework for Addressing Climate Change
Over the past several years, consistent with its history of pioneering environmental efforts, California has adopted several statutory and regulatory mechanisms for reducing greenhouse gas emissions from both stationary sources (e.g., manufacturing facilities, utilities) and mobile sources (e.g., motor vehicles, trucks, off-road vehicles and equipment). In addition to this, California Gov. Jerry Brown (D) has proactively engaged other domestic and foreign entities on climate issues, and the state and local governments have recently taken several steps in furtherance of their commitment to greenhouse gas reductions. The current legal and political framework, and the status of these efforts, is described briefly below.
• Statutory and Regulatory Framework
With the passage of the California Global Warming Solutions Act of 2006 (commonly referred to as AB 32), California set ambitious goals for reducing greenhouse emissions to 1990 levels by 2020. These goals were enhanced with the passage of SB 32 in 2016, which codifies a 2030 greenhouse emissions reduction target of 40 percent below 1990 levels. California set forth its strategy for achieving these goals in a “Scoping Plan” initially developed by the California Air Resources Board, which is updated every five years. The initial Scoping Plan set forth a range of greenhouse gas reduction actions including direct regulation, market-based mechanisms, and incentive programs. Highlights of the current framework include:
• Direct Regulation
California has a robust greenhouse emission regulatory program that covers a variety of sources and sectors. One of the most controversial elements of California's program is its regulation of greenhouse gas tailpipe emissions from passenger vehicles. As a general rule, tailpipe emission limitations are established at the national level; state and local standards are preempted, meaning they cannot be adopted or enforced. Congress established this national program to ensure that auto manufacturers would not face a patchwork of regulation across the states, which would have placed undue burdens on manufacturers. At the same time, however, Congress recognized the challenge that California's unique geography posed for achieving ambient air quality standards for ozone, given the topography of the Los Angeles basin. This is why Congress established a limited exception for the Environmental Protection Agency to allow California to adopt its own emissions limitations provided certain stringent conditions were met, including that “extraordinary and compelling” circumstances warranted the adoption of separate standards for California.
While the EPA granted numerous waivers under this provision for California's motor vehicle emissions standards over several decades for non-greenhouse gas pollutants, in 2008, the EPA denied the state's waiver request for its greenhouse gas emissions standards for motor vehicles for model years 2009-2016. The denial occurred in the final year of the George W. Bush administration, but with the election of President Obama, California sought reconsideration of the denial in early 2009. President Obama directed the EPA to reassess the denial, and the waiver was ultimately granted on July 8, 2009. This led to a series of negotiations among automakers and regulators (both state and federal) in order to achieve “one national program” of greenhouse gas standards for model years 2009-2016, and a similar agreement for model years 2017-2025. In addition to regulation of greenhouse gas tailpipe emissions from passenger vehicles, California has undertaken stringent direct regulation of greenhouse gas emissions from other sources, including medium- and heavy-duty vehicles and major industrial facilities, among other things.
• Cap-and-Trade
Targeting stationary sources of greenhouse gas emissions, California's legislature recently approved a 10-year extension of California's cap-and-trade program with the July 25 enactment of AB 398, which continues the current program until 2030. California's cap-and-trade program, which CARB implements under its view of its AB 32 authority, establishes a hard and declining cap on emissions from identified sectors, totaling approximately 85 percent of total statewide greenhouse gas emissions. The currently regulated sectors include various types of production facilities (cement, glass, hydrogen, iron and steel, petroleum refining, etc.), electricity generating facilities and importers, suppliers of natural gas and other fuels, and suppliers of carbon dioxide. At a high level, the program works as follows: CARB issues allowances equal to the total amount of allowable emissions over a given compliance period and distributes these to regulated entities, who must either reduce emissions below a threshold amount or obtain allowances or offset credits equal to their emissions, either from CARB or the open market.
• Renewables Portfolio Standard
California's current Renewables Portfolio Standard requires utilities in the state to produce 50 percent of their retail electricity from renewable sources by December 31, 2030. These standards are implemented jointly by the California Energy Commission and California Public Utilities Commission. The public utilities commission is charged with adopting a process for electric service providers to file an integrated resource plan to ensure each entity meets the CARB greenhouse gas emission reduction targets for the electricity sector reflecting that sector's percentage in achieving the economy-wide greenhouse gas emissions reductions of 40 percent from 1990 levels by 2030.
• Low Carbon Fuel Standard
As required under Executive Order S-01-07, CARB has developed a Low Carbon Fuel Standard, which requires the carbon intensity of California's transportation fuels to be reduced by at least 10 percent by 2020. CARB's fuel standard regulations establish annual declining carbon intensity targets for regulated parties to meet based on the production and use of transportation fuel in the state of California. The targets continually decline from 2010 to 2020, after which the carbon intensity stabilizes. Under the low carbon fuel standard, regulated entities meet their annual compliance obligation by retiring a number of credits from their credit account that is equal to their compliance obligation for that year. The reporting of higher carbon intensity fuel produced and used as a transportation fuel in California results in the assignment of deficits against the average carbon intensity required for a given year. Regulated parties are required to offset any assigned deficits by producing/selling lower carbon intensity fuel or purchasing credits.
• Governmental Efforts
In tandem with the state's regulatory efforts, several notable developments in California reflect state and local governments’ increased emphasis on pursuing climate change initiatives. Brown made international headlines in June when he took a five-day tour of China to speak publicly on California's continued commitment to addressing climate change, meeting with Chinese President Xi Jinping and entering agreements on behalf of California with China's Ministry of Science and Technology, as well as with leaders in two Chinese provinces, Jiangsu and Sichuan. There has been some criticism that Brown's actions run afoul of separation of powers principles because the president has the responsibility over foreign relations. Like the Paris agreement, these agreements are non-binding and do not establish new emission reduction goals, but they nevertheless call for strengthening cooperation in advancing innovation and development of low-carbon technologies, climate research, and the commercialization of cleaner technologies.
Additionally, in February, Democratic leaders of the California legislature hired Eric Holder, former U.S. attorney general under President Obama, to serve as outside counsel and to provide advice on the state's legal strategy against the Trump administrative initiatives, including climate change. While the California Assembly decided in June not to continue its contract with Holder, the state Senate did extend its contract beyond the initial short-term engagement.
Lastly, Brown—along with the governors of Washington and New York—formed the United States Climate Change Alliance in the wake of the Trump administration's announcement concerning withdrawal from the Paris agreement. The Alliance is a coalition of states committed to promoting “coordinated state action” on climate change in response to the federal government's decision to withdraw from the agreement. Since its initial formation in June, 13 states and Puerto Rico have joined the Alliance, which emphasizes among its “principles” the role of state-level climate action in supporting the Paris agreement and “pursuing aggressive climate action to make progress towards its goals.” It is reported that Brown—speaking at a climate change event in New York City—recently doubled down on his position in opposition to the current administration on climate change, calling it (as well as other Trump administration policies) “stupid and dangerous and silly” and suggesting that supporters of these policies are “people who dwell in deep, dark caves.”
Cities and counties have followed the state governments’ lead in responding to Trump's decision to walk away from the Paris agreement. The Mayors National Climate Action Agenda formed in June as a network of cities across the country who have committed to intensifying local government efforts to invest in renewable energy and to meet each individual city's current climate goals.
Shortly thereafter, in July, two counties and a city in California each filed lawsuits against a group of energy companies alleging a variety of common law claims—including public and private nuisance, strict products liability (based on both design defect and failure to warn), and negligence—related to the defendants’ roles in emitting producing fossil fuels and contributing to global GHG emissions. See, e.g., San Mateo v. Chevron Corp., No. 17-cv-03222; Marin v. Chevron Corp., No. 17-cv-02586; and Imperial Beach v. Chevron Corp., No. 17-cv-01227, in the Superior Court of California. The cities of Oakland and San Francisco followed suit, filing complaints alleging similar claims on Sept. 19. See, e.g., People of the State of California v. BP P.L.C., No. 17-cv-561370; People of the State of California v. BP P.L.C., No. RG-17875889, in the Superior Court of California.
Legal and Practical Limitations on the State's Efforts to Address Climate Change
From a policy perspective, the wisdom of states developing individual positions and measures that are at odds with the federal government's positions on climate change has been questioned from several sectors, even those generally supportive of addressing climate change. These stakeholders are concerned with the potential for a patchwork of regulation and note that, given the global nature of the pollutant, individual state efforts may be more symbolic than effective holding the global temperature increase to below 2 degrees Celsius in accordance with the Paris agreement. From a legal perspective, stakeholders also express concern with the lack of specific extraordinary and compelling circumstances, or even state-specific effects, that would justify a state regulating a pollutant like GHGs that admittedly has global, not local effects, beyond a generalized desire by the state to drive national policy. In addition to these policy concerns, and perhaps reflecting them, significant legal and practical limitations need to be considered when contemplating such action by sub-national entities, such as the State of California.
Legal Limitations
• Exclusive Power of Federal Government Over Foreign Affairs
It is well-established that the Constitution gives the federal government the exclusive authority administer foreign affairs. See, e.g., Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir. 2012). This principle stems from the fact that under the Supremacy Clause of the United States Constitution, the “Constitution, and the Laws of the United States...and all Treaties made...under the Authority of the United States [are] the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Any state laws that intrude on the exclusive federal power to conduct foreign affairs has been held, by virtue of the Supremacy Clause, to be preempted. Movsesian, 670 F. 3d at 1072 (explaining the concept of “dormant foreign affairs preemption”).
California laws have in the past been struck down due to preemption where they impermissibly intruded into the sphere of the federal government's authority over foreign affairs. Under these precedents, it is clear that any climate change legislation enacted by a state government in an attempt to “abide by” previous commitments made—and subsequently withdrawn—by the U.S. under the Paris agreement is vulnerable to preemption claims if it intrudes on the federal government's exclusive authority over foreign affairs. To date, there have been no challenges to California laws raising foreign affairs preemption claims to defeat state climate change legislation under the theory that they contravene federal policy under the Trump administration.
Proponents of state action would likely point to Movsesian, in which a federal district court rejected claims by automobile industry defendants that CARB regulation of greenhouse gas emissions from motor vehicles were preempted by federal climate change foreign policy. That particular court rejected the notion that California's GHG regulations conflicted with any discernible “policy” position of the U.S. with respect to climate change and opined that “in order to prove conflict in the instant case, Plaintiffs must make a showing that California's efforts to implement regulations limiting the emission of [greenhouse gases] from automobiles will interfere with the efforts of this government or a foreign government to reduce the intensity of their [greenhouse gas] emissions pursuant to a negotiated agreement, treaty, partnership or the like.” 670 F. 3d at 1187. It remains to be seen whether such an argument might have more traction now given recent developments with respect to the United States’ commitment to—and subsequent withdrawal from—the Paris agreement.• Ability of States to Form Agreements with Foreign Nations
As a further limitation on states’ authority to participate in foreign policy, Article I, Section 10 of the Constitution prohibits states from entering pacts with foreign nations. Clause 1 provides that “No State shall enter into any Treaty, Alliance, or Confederation” and Clause 3 provides that “No State shall, without the Consent of Congress...enter into any Agreement or Compact with...a foreign Power.” While case law interpreting these clauses is scarce, they have generally been construed to restrict states only from entering legally binding agreements with foreign entities. California would likely argue that because of the non-binding nature of the recent climate change “cooperation” agreements (between it and China and other foreign entities), its actions do not run afoul of the provisions of the Article I, Section 10. Opponents might pursue such arguments, however, given that the law is fairly unsettled as to the reach of these clauses.
• Dormant Commerce Clause
The dormant commerce clause prohibits state regulations that improperly discriminate against out-of-state commercial interests or unduly burden interstate commerce. California's greenhouse gas regulations and other climate change mitigation measures have on occasion been challenged on the grounds that they constitute an impermissible burden on interstate commerce in violation of the dormant commerce clause. These challenges have met with varying degrees of success. In Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013), for example, the Ninth Circuit held in a 2-1 decision that California's low carbon fuel standard was not facially discriminatory, but could potentially be discriminatory in purpose or practical effect, such that the court remanded the case to the district court with directions to conduct balancing between the benefits gained by the standards and the burdens imposed on interstate commerce as set forth by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). The Supreme Court denied petitions for certiorari in the case so has not spoken to the facial challenge questions presented in the case. This and other dormant commerce clause jurisprudence are cited as suggesting that dormant commerce clause challenges, either claiming facial discrimination or discrimination in purpose and effect, may gain traction where such discrimination can be shown.
Practical Limitations
There are also practical limitations on a state's ability to stake out policy positions on climate change contradictory to those of the federal government. As an initial matter, given that climate change is a global phenomenon caused by the contribution of a variety of sources world-wide, the efficacy of state-level actions with respect to altering greenhouse gas emission levels has been questioned. Further, state and local initiatives to address climate change—when conducted separate from concerted national/international action—seem paradoxical given the disproportionate costs of such initiatives in relation to their benefits (e.g., by dramatically increasing the cost of vehicles, fuel, or other commodities). These considerations are cited by those who oppose state action as supporting their position that climate change regulation is best left to the national government, which has the resources and authority to prescribe national policy, to make binding agreements with other nations, and—through the supremacy of federal law—to ensure a uniform approach among the states.
Conclusion
The United States’ withdrawal from the Paris agreement has given new life to the efforts of states and localities—such as California and its cities and counties—to address climate change via direct regulation, incentives, cooperation agreements with other entities, and the like. Many would argue that it is appropriate for sub-national entities to play a role in climate mitigation efforts, pointing out that the Paris agreement itself placed state and local governments at the front lines of climate change regulation, as the entities ultimately responsible for implementation of the nationally determined contribution. Certainly, opportunities exist within the bounds of current law for states and localities to work in partnership with the federal government on environmental policy and regulation. In fact, most modern environmental laws are premised upon this very model of cooperative federalism. Nevertheless, states and local governments must ultimately be mindful of the legal and practical limitations on their ability to regulate and prescribe policy in a manner impinging upon the role reserved for the federal government.
Shannon S. Broome is the managing partner of Hunton & Williams LLP's San Francisco office. Her practice focuses on Clean Air Act and climate change law, and she represents companies in numerous industries including oil and gas, chemical manufacturing, and general manufacturing.
Clare Ellis is an attorney in Hunton & Williams LLP's environmental practice where she focuses on issues facing the oil and gas industry, pipeline environmental and safety issues, refinery emissions compliance, and climate change.
The opinions expressed here do not represent those of Bloomberg BNA, which welcomes other points of view.
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Rule Critics Urge Court To Reject Calls To Review HFC Measure's Overturn
Oct 18, 2017 | Inside EPA
By Lee Logan
Chemical companies opposed to an EPA rule that curbs the use of refrigerants that act as potent greenhouses gases are urging an appellate court not to reconsider its ruling that vacated the measure, arguing EPA might revise the rule due to the Trump administration's climate policy stance and that the agency has various other options to limit the chemicals.
In addition, the companies argue that the panel's Aug. 8 ruling correctly interpreted section 612 of the Clean Air Act, which gives EPA authority to require companies to “replace” ozone-depleting substances (ODS) with safer chemicals.
Under the program, EPA publishes a list of unacceptable chemicals that must be phased out, as well as another list for acceptable chemicals that can be used in their place.
In the 2015 rule at issue in the case, Mexichem Fluor v. EPA, et al., EPA changed the status of hydroflurocarbons (HFCs) -- substances that do not deplete the ozone but are potent GHGs -- from acceptable to unacceptable.
The U.S. Court of Appeals for the District of Columbia Circuit's 2-1 panel ruling upheld EPA's decision to include HFCs on the unacceptable list, but it vacated the rule to the extent that it requires manufacturers already using HFCs to replace them with substitutes with a lower global warming potential (GWP).
Late last month, environmentalists and two chemical manufacturers that support the rule urged the court to reversethe ruling, arguing that the agency's approach is entitled to deference. They also argued that the court may have exceeded its authority as the ruling scrapped part of a 23-year-old regulation, even though the law generally requires parties to challenge rules within 60 days of being issued.
But in an Oct. 18 response filing, Mexichem and Arkema, Inc., urge the court to reject the requests from environmentalists and other chemical companies for the court to reconsider the ruling en banc.
Notably, the petitioners say that EPA did not seek en banc review, and the agency is not expected to weigh in given that the court only invited a response to the requests from petitioners.
EPA's decision not to appeal the panel ruling -- coupled with President Donald Trump's March executive order rescinding the prior administration's Climate Action Plan and directing agencies to review rules “related to or arising from” that plan -- would make en banc review “quite odd,” the petitioners say.
“It would be doubly odd to do so when the rule might not survive no matter what the en banc Court did,” the filing says, noting that the D.C. Circuit has recently denied similar reconsideration petitions “in which the agency lost before the panel and did not seek rehearing itself.”
Included in that list is the court's vacatur in Clean Air Council v. Pruitt of EPA's administrative pause of its methane standards for new oil and gas equipment.
Mexichem and Arkema further argue that the D.C. Circuit should not review the panel ruling because scrapping the rule will not prevent the agency from regulating HFCs.
They point to a portion of the panel's ruling that outlines a host of potential regulatory mechanisms to limit the chemicals, adding that EPA can still ban HFCs under section 612, so long as the chemicals EPA seeks to replace are ODS.
While the groups seeking en banc review charge that the ruling “provides no support for its assertion that these other options are viable,” petitioners charge that those groups “never suggested that these other options are not viable.” Further, they add that EPA's initial rulemaking under this program outlined other regulatory programs that it could use to protect the environment for “second-generation” substitutes.
Statutory Interpretation
The companies also seek to counter the “principal” argument in the en banc petitions, that the panel incorrectly interpreted EPA's statutory authority.
They charge that groups supporting the rule wrongly claim that the court lacks jurisdiction to consider the case because the ruling “improperly invalidated” parts of a 1994 rule that prohibits manufacturers from using “unacceptable” chemicals after a date certain. Because the Clean Air Act requires parties to file challenges to rules within 60 days, the court lacked jurisdiction to scrap the 1994 provision, the groups argued.
However, the petitioners say that they only challenged the 2015 rule, and that even if their challenge were “reframed” as targeting the 1994 rule it would be allowed. That is because EPA in the recent rule drastically changed the meaning of “substitute” to include HFCs, when that term was originally defined as a chemical that replaces ODS.
“The banning of HFCs that were not intended for such use was a dramatic alteration of the legal landscape, for which petitions for review are allowed,” the response brief says.
Further, it agrees with the panel majority's holding that the term “replace” in section 612 constitutes the initial replacement of ODS with chemicals that do not harm the ozone layer, including HFCs. They argue that “no one employing ordinary English” would say that a company that, years later, substitutes HFCs for chemicals with a lower GWP is replacing ODS.
“[A]nyone using ordinary English would say that the [lower-GWP chemicals] are 'replacing' the HFCs -- or 'substituting for' them.”
While the statute requires ODS to be replaced with chemicals that reduce environmental and health risks, the petitioners say groups seeking en banc review “would read one of the two essential elements out of the statute, thereby transforming a limited program into a limitless one.”
https://insideepa.com/daily-news/rule-critics-urge-court-reject-calls-review-hfc-measures-overturn
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