Preview Newsletter
ACC PM 16/01/18
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It’s Time We See OTC Monograph Reform Across the Finish Line and Into the 21st Century
Jan 16, 2018 | The Hill - Congress Blog
By Jeff Needham
Over-the-Counter (OTC) medicines are an important staple in households across the country. -
Johnson & Johnson Worried About Asbestos in '70s, Docs Show
Jan 16, 2018 | FairWarning (In E&E Greenwire)
By Myron Levin
Johnson & Johnson officials in the 1970s expressed some concern about potential asbestos content in the company's baby powder, according to thousands of pages of internal documents reviewed by the group FairWarning. -
The Energy 202: Los Angeles Contemplates Its Own Climate Suit, Too
Jan 16, 2018 | The Washington Post
By Dino Grandoni
Last week, the nation’s most populous city sued the five biggest oil companies operating in the United States. -
North Dakota Oil Output Cut Back to Meet Gas Capture Rules
Jan 16, 2018 | AP (In The Washington Post)
By James MacPherson
Fearing sanctions by the state, some North Dakota oil drillers have begun cutting output to control the amount of natural gas that’s being burned off at well sites and wasted as a byproduct of crude production, industry and state officials say. -
Senate Republicans Back CPP Repeal
Jan 16, 2018 | Inside EPA
Republican members of the Senate Environment & Public Works Committee (EPW) are backing EPA's proposed repeal of the Obama-era Clean Power Plan (CPP) utility greenhouse gas rule, telling EPA Administrator Scott Pruitt that the unlawful and over-reaching rule would have eliminated jobs, raised energy prices and hurt communities. -
BP Says Deepwater Disaster will Cost Even More
Jan 16, 2018 | Houston Chronicle
By Collin Eaton
BP anticipates taking a $1.7 billion charge in its fourth-quarter earnings as it pays out the remaining business economic-loss claims stemming from the 2010 Deepwater Horizon disaster, the company said Tuesday. -
U.S. Expected to Become Net Exporter of Natural Gas for First Time in Decades
Jan 16, 2018 | Houston Chronicle
By Ryan Maye Handy
The U.S. could become a net exporter of natural gas in 2018 for the first time since 1957, thanks to increased natural gas exports to Mexico, LNG exports to at least 20 countries and less gas flowing into the country from Canada, according to the U.S. Department of Energy. -
Bush-Era Oil Research Program Returns to Trump's Washington
Jan 16, 2018 | E&E Energywire
By Nathanial Gronewold
An oil and gas research initiative that had been the darling of the George W. Bush administration hits Capitol Hill this week to pitch a revitalization plan under a new president and a new national policy focused on "energy dominance." -
API President Jack Gerard Says That Job, Business Prospects in the Petrochemical Industry are on the Rise
Jan 16, 2018 | Pittsburgh Courier
By Freddie Allen
Jack Gerard, the president and CEO of the American Petroleum Institute, said that there are incredible career and business opportunities in the petrochemical industry and he’s committed to increasing awareness about those prospects in the Black and Hispanic communities. -
New Jersey Resources' Unit Seeks Permit for 84-Mile Pipeline
Jan 16, 2018 | Zack's (In Nasdaq)
New Jersey Resources Corporation 's NJR subsidiary, Adelphia Gateway, LLC, filed an application with the Federal Energy Regulatory Commission ("FERC") for a certificate of public convenience for authorizing the operation of an existing 84-mile natural gas pipeline and related facilities in Pennsylvania. -
Headed for the Exit, Christie Lets Green Bills Die
Jan 16, 2018 | E&E Climatewire
By Josh Kurtz
On his last full day in office, New Jersey Gov. Chris Christie (R) effectively vetoed legislation yesterday that would have enabled the state to join the fledgling U.S. Climate Alliance, the bipartisan group of states committed to meeting the greenhouse gas reduction goals of the international climate accord. -
EWire: Shutdown Talk Boosts EPA Budget Uncertainty
Jan 16, 2018 | Inside EPA
Congressional leaders have concluded they cannot reach a broad spending deal for the remainder of fiscal year 2018 by a Jan. 19 deadline, according to news reports, raising the chances that the government will shut down if Congress fails to pass another short-term funding extension. -
Could 'Sue-and-Settle' Ban Backfire for Trump Team?
Jan 16, 2018 | E&E Greenwire
By Amanda Reilly
In its quest to overturn regulations, the Trump administration has left no stone unturned, including taking on legal tools commonly used to resolve environmental law disputes and hold polluters accountable.
Industry and Association News - There are no clips to report at this time.
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Environment News
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It’s Time We See OTC Monograph Reform Across the Finish Line and Into the 21st Century
Jan 16, 2018 | The Hill - Congress Blog
By Jeff Needham
Over-the-Counter (OTC) medicines are an important staple in households across the country. In fact, they account for approximately 60 percent of medicines on the market in the U.S.– including those that treat or manage cold symptoms, headaches, stomach ailments, and other conditions. While OTC medicines make up much of Americans’ medicine cabinets, the process for regulating the majority of these medicines, referred to as the OTC Monograph system, hasn’t been updated in more than 40 years.
While the Monograph system has served us well, it’s based on an outdated model that requires notice and comment rulemaking, an increasingly slow and cumbersome process. As a result, the system has become gridlocked and the process to update product labels with new safety information, approve new ingredients, or make other changes can take several years or more.
There has been great, bipartisan momentum in Congress behind draft legislation that would modernize the OTC Monograph system. The draft bill – The Over-the-Counter Monograph Safety, Innovation, and Reform Act – reflects years of discussions between the Food and Drug Administration (FDA), public health groups, and industry about how best to modernize the OTC Monograph system in a way that places consumers, science, and innovation above the bureaucracy associated with the rulemaking process.
As president of U.S. Consumer Healthcare for Perrigo, the largest maker of store brand OTC medicines in the U.S., I know firsthand how important it is for Congress to continue to lead on this issue, for the future of our products and, more importantly, for our customers.
For our company, whose business is to provide consumers with high-quality, value priced store brand OTC drugs that are equivalent to the national brands, we support changes to the system, including a provision that would give companies innovating under the OTC monograph system a two-year “head start” of exclusivity in the marketplace.
In a market governed by the proposed reform, we expect innovations to establish ingredients that benefit consumers. These may include easier to take or apply dosage forms, new combinations of existing ingredients to reduce the need to use multiple medicines at the same time, the addition of ingredients with an established track record of safety and effectiveness to a monograph, or the addition of new indications to existing ingredients – all to provide consumers with a wider range of choices and assured value.
Innovations such as these require investments in data to ensure safety and effectiveness. Therefore, our new system must provide an incentive for these products to come forward. We believe the innovating firm should get a head-start to raise awareness of the new offering before other, competitive products and brands are permitted to enter the marketplace utilizing this newly developed innovation.
If drafted correctly, a modern OTC Monograph system can create a surge of innovation that will increase the choices available to consumers, protect the choices they already have and continue to allow transparent price competition.
And, we’re not the only ones who agree it’s time for change. Public health groups like the American Academy of Pediatrics, American Public Health Association, and The Pew Charitable Trusts support Monograph reform as well.
On Wednesday, members of the House Energy and Commerce Health Subcommittee are taking an important step toward reform, as they look to markup the legislation. A move that brings us closer to modernizing the OTC Monograph system.
While many issues these days can be lost to partisan disputes, this isn’t one of them. It is in this bipartisan spirit that I urge all committee members to continue working together to pass the legislation out of committee and send it onto the House floor for a vote.
It’s time we see reform across the finish line, and bring the OTC Monograph system into the 21st century to meet the modern consumer’s needs.
Jeff Needham is the Executive Vice President and President, Consumer Healthcare Americas for Perrigo Company plc, a leading global over-the-counter, consumer goods and pharmaceutical company. He currently serves as the chair of the Consumer Healthcare Products Association.
http://thehill.com/blogs/congress-blog/healthcare/369121-its-time-we-see-otc-monograph-reform-across-the-finish-line
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Johnson & Johnson Worried About Asbestos in '70s, Docs Show
Jan 16, 2018 | FairWarning (In E&E Greenwire)
By Myron Levin
Johnson & Johnson officials in the 1970s expressed some concern about potential asbestos content in the company's baby powder, according to thousands of pages of internal documents reviewed by the group FairWarning.
One memo written by an executive in 1973 concluded that even if the powder had asbestos levels of 1 percent, a baby's exposure would be below the legal limit of the time.
Records including the memo cast a shadow on the company's longtime line that its powders have always been free of asbestos.
Unearthed memos have brought a new wave of lawsuits alleging that asbestos in the powders caused mesothelioma, a rare cancer. Johnson & Johnson won one of these cases in Los Angeles in November, settled a second and faces dozens more.
Private documents seem to show company officials admitting at times that their products had asbestos problems.
In 1973, one memo noted that the baby powder, the company's signature product, occasionally contained tiny amounts of what "might be classified as asbestos fiber."
Company officials tried to convince federal regulators that up to 1 percent asbestos would not be harmful and lobbied for a testing method that would not detect trace amounts of the dangerous chemical.
That test is still used today.
https://www.eenews.net/greenwire/2018/01/16/stories/1060071047
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The Energy 202: Los Angeles Contemplates Its Own Climate Suit, Too
Jan 16, 2018 | The Washington Post
By Dino Grandoni
Last week, the nation’s most populous city sued the five biggest oil companies operating in the United States.
When New York City filed a lawsuit against BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell for damages caused by climate change, Bill McKibben, co-founder of the advocacy group 350.org, told The Washington Post that it was “one of the handful of most important moments” in the three decades he has watched climate-change politics.
Yet the fight between Democratic officeholders and petroleum companies — most prominently ExxonMobil — has escalated in just a few short days.
The latest: On Friday, city council members from the nation’s second most populous city, too, called for legal action against oil companies.
Like New York City Mayor Bill de Blasio, two Los Angeles City Council members want the city to seek financial reimbursement from fossil-fuel producers to address the effects of global warming.
In New York, the mayor points to the destruction from Hurricane Sandy in 2012. In Los Angeles, council members focused on Southern California’s wildfire season.
“We’re getting rising sea levels, wildfires, mudslides — that’s the implication of climate change right there,” Los Angeles City Councilman Mike Bonin, one of the lawmakers, told the Los Angeles Times. “That does damage to our infrastructure. It just has some wide-ranging and comprehensive implications.”
The lawmakers are asking for Los Angeles to submit a court filing in support of New York City’s lawsuit — and for a meeting with the city attorney to discuss potentially bringing the city's own suit.
If it chose to move ahead, Los Angeles would join other California communities, including San Francisco and Oakland, that contend oil companies should help pay for the cost of addressing rising seas in San Francisco Bay.
None of the suits are, in the words of the New York Times editorial board, a “slam dunk.” The links climate scientists have made between climate change and weather-related events, such as hurricanes and forest fires, would be tested in court. As would the claim that fossil-fuel producers — and not consumers — should be held liable for climate-related damages.
“There are, of course, numerous legal arguments that may result in the case being dismissed before the City is given the full opportunity to make its case, or in its losing on the merits after a trial,” Michael Burger, director of the Sabin Center for Climate Change Law at Columbia University, said by email of the New York City case. “But no court has yet foreclosed this kind of lawsuit.”
But while lawsuits attempting to hold oil companies accountable for global warming have not been successful so far, it seems Democratic state legislators believe they have found a winning political strategy in aggressively going after the same oil and gas industry the Trump administration has spent the past year significantly deregulating.
Meanwhile, the oil companies show little sign of relenting in defending themselves. In a court filing last week, ExxonMobil denouncedthe attorneys general of New York and Massachusetts -- who are investigating whether the firm misled investors about climate change -- for allegedly trampling on its free-speech rights, calling the state probes “an unlawful conspiracy.”
POWER PLAYS
— Zinke's Sunshine State burn continues: The office of Oregon Gov. Kate Brown (D) said Friday that Interior Secretary Ryan Zinke is considering exempting that state from the administration's offshore drilling plans after hearing her concerns. A Brown spokesman told the Associated Press that Zinke and the governor spoke for nearly 30 minutes.
“Regarding the offshore drilling ban, Gov. Brown asked for the same consideration for Oregon’s ‘people’s coast’ as was given Florida,” spokesman Bryan Hockaday said. “Secretary Zinke agreed with concerns about the economic risks that offshore drilling could bring to Oregon and committed to work with the governor.”
Zinke has now had calls with seven governors to discuss their objections to the department's new offshore oil drilling plans, The Hill’s Timothy Cama reported late last week. Zinke said Friday he had already spoken with South Carolina Gov. Henry McMaster (R), Rhode Island Gov. Gina Raimondo (D), California Gov. Jerry Brown (D), Washington Gov. Jay Inslee (D), Delaware Gov. John Carney (D), and North Carolina Gov. Roy Cooper (D), per Cama.
The calls come after governors whose states would be affected by the ban complained about an instant exemption for Florida following a conversation between the secretary and Gov. Rick Scott (R-Fla.), who is considering a Senate run this year.
— Omitting “those who deal in scientific fact:” A group of more than 100 lawmakers sent a letter to President Trump criticizing the decision to leave climate change out of the administration’s national security strategy.
“As global temperatures become more volatile, sea levels rise and landscapes change, our military installations and our communities are increasingly at risk of devastation. It is imperative that the U.S. address this growing geopolitical threat,” wrote the group of 106 lawmakers, mostly Democrats and led by Reps. Jim Langevin (D-R.I.) and Elise Stefanik, (R-N.Y.), the Washington Examiner reported. Langevin and Stefanik lead the House Armed Services Subcommittee on Emerging Threats and Capabilities.
However, Trump, somewhat inadvertently, acknowledged the threat climate changed poses to military preparedness when he signed the defense authorization act late last year. The bill contains a provision, written by Langevin, calling climate change “a direct threat to the national security of the United States" and directing the military to study how to adapt susceptible facilities.
— Trump's NASA pick, Rep. James Bridenstine (R-Okla.), stumbles amid partisan fighting: "For the second time in three months," The Wall Street Journal's Andy Pasztor reports, "the Senate Commerce Committee on Thursday is expected to narrowly approve the Oklahoma Republican on a party-line vote. His name never came up for floor action in 2017 because not a single Senate Democrat signaled support and Republican leaders were worried about rounding up the necessary votes on their side of the aisle."
Bridenstine has been unable to lure any Democratic support in part due to his past positions on climate change. In 2013, for example, he incorrectly said "global temperatures stopped rising 10 years ago."Problem for Puerto Rico in review of hurricane deaths: "The bodies have been buried"Many people who have died after the hurricanes have already been buried or cremated, creating a challenge to examining deaths to confirm a cause of death.CNNThe damage done by Trump’s Department of the InteriorAn overview from The New Yorker's Elizabeth Kolbert of "the destruction of the country’s last unspoiled places," as she describes recent activity by Interior under Ryan Zinke.
OIL CHECK
— Ford EVs on the horizon: Ford Motor Company will push to have 40 electric cars, including 16 battery-only vehicles, on the market by 2022. The announcement was made by company executives over the weekend at the auto show in Detroit, per Bloomberg News: "The carmaker will shell out $11 billion, bringing 40 electrified vehicles to market by 2022... That’s up from the $4.5 billion that Ford said in late 2015 it would invest through the end of the decade..." The announcement comes just a few days after the automaker was accused in a lawsuit of cheating on emissions tests.
Elsewhere at the auto show, U.S. car manufacturers, including Ford and General Motors, unveiled new diesel pickup trucks, Reuters reports, even as diesel sales have fallen sharply since the initial Volkswagen diesel pollution brouhaha in 2015.
— Utility jobs lost as new power plants need fewer workers, The Wall Street Journal's Russell Gold reports: "As coal and nuclear power plants around the U.S. close due to competitive pressures, the number of people employed in making electricity is shrinking. Older power plants are being retired at an unprecedented pace as power producers wage a fierce fight for market share. They are being supplanted by newer power plants fired by natural gas, as well as wind and solar farms, which often are simpler to operate and require fewer workers."
— Cold spell calls for record natural gas: Energy demand was at an all-time high during the recent two weeks of extreme cold, the U.S. Energy Information Administration reported Friday.
Per the Washington Examiner, a record amount of natural gas was taken out of storage to meet demand as coal and nuclear plants made up much of the electricity production during the freeze: “Withdrawals from underground natural gas storage facilities to feed demand totaled 359 billion cubic feet on Jan. 5. That exceeded the previous record of 288 billion cubic feet set four years ago during the 2014 polar vortex." Uranium miners pushed hard for a comeback. They got their wish.Over the weekend, The New York Times had a front-page story on about towns outside Bears Ears National Monument bracing for uranium mining.
THERMOMETER
— The latest on the California mudslides: The death toll from the devastating mudslides in Southern California reached 20 over the weekend. And there are at least three people still missing among the wreckage and debris as of Monday, including a two-year-old girl. It has been a week since heavy rains led to the mudslides, which have destroyed more than 296 buildings, including more than 70 homes, according to the Los Angeles Times. And that count probably will increase as inspectors continue to assess the damage.
U.S. 101, the key coastal route that connects Los Angeles and several points west and north, remains closed. Crews are continuing to clear debris off the highway, and there are about 75 people assigned to the task. The California Department of Transportation said Monday officials are hoping to reopen it Jan. 22, per the Associated Press.
— What the aftermath looks like: The New York Times’s Jennifer Median compiles devastating images of Montecito, Calif. as it starts to pick up from the latest disaster.
— Meanwhile, residents who are recovering from the recent wildfires grapple with what’s next: The Washington Post’s Scott Wilson details the experience of residents in the Coffey Park neighborhood of Santa Rosa, Calif., where nearly half were renting their homes at the time of the fires. Now, many are wondering whether to rebuild.DAYBOOK
Today
The Senate Energy and Natural Resources committee holds a hearing on domestic and global energy outlook.
Politico holds an event on "Driverless Cars and the Future of Mobility."
The Argus Americas Petroleum Markets Week begins.
The Bipartisan Policy Center hosts FERC commissioners Neil Chatterjee and Cheryl LaFleur for a discussion on the proposed Grid Resiliency Pricing Rule.
The Center for Strategic & International Studies holds an event in the International Energy Agency’s World Energy Outlook 2017.
The Heritage Foundation holds an event an event on energy dominance and NAFTA.
The North American International Auto Show continues.
Coming Up
The Senate Energy and Natural Resources Subcommittee on Water and Power holds a hearing “to examine the Bureau of Reclamation’s title transfer process and potential benefits to federal and non-federal stakeholders” on Wednesday.
The Senate Committee on Environment and Public Works holds a hearingon water infrastructure on Wednesday.
The House Natural Resources Committee holds a markup on various legislation on Wednesday.
The Smart Cities International Symposium and Exhibition begins on Wednesday.
The Nuclear Energy Institute holds its Nuclear Fuel Supply Forum on Wednesday.
The House Natural Resources Committee holds an oversight hearing on “Examining the Department of Interior’s Actions to Eliminate Onshore Energy Burdens” on Thursday.
The House Energy and Commerce Subcommittee on Environment holds a hearing on modernizing the superfund cleanup program on Thursday.
The House Transportation and Infrastructure Subcommittee on Water Resources and Environment holds a hearing on water resources infrastructure on Thursday.
The United States Energy Association holds the 14th Annual State of the Energy Industry Forum on Thursday.
The U.S. Nuclear Regulatory Commission holds an overview of low-level waste and spent fuel storage on Thursday.
The U.S. Chamber of Commerce hosts “America’s Infrastructure Summit” on Thursday.
The Heritage Foundation holds an event on the “Power Clash between the U.S. and China in the Pacific” on Thursday.
The Center for Strategic and International Studies holds a presentation of the Institute of Energy Economics, Japan’s Energy Outlook 2018 on Thursday.
The Federal Energy Regulatory Commission holds a meeting on Thursday.
A NCAC Lunch Presentation on “Natural Gas Revolution, Meet the Battery Revolution” takes place on Friday.
The Women’s Council on Energy and the Environment holds its 6th annual Lunch & Learn event to decide what topics to cover in 2018 on Jan. 23.
The Center for Strategic and International Studies holds an event on Canada’s energy future on Jan. 23.
https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2018/01/16/the-energy-202-los-angeles-contemplates-its-own-climate-suit-too/5a5d3eda30fb0469e8840155/?utm_term=.609046561c89
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North Dakota Oil Output Cut Back to Meet Gas Capture Rules
Jan 16, 2018 | AP (In The Washington Post)
By James MacPherson
Fearing sanctions by the state, some North Dakota oil drillers have begun cutting output to control the amount of natural gas that’s being burned off at well sites and wasted as a byproduct of crude production, industry and state officials say.
Rebounding oil prices and technology advances in western North Dakota’s oil patch have goosed crude production, spurring unanticipated record levels of natural gas that comes with it, said Justin Kringstad, director of the North Dakota Pipeline Authority.
The state’s gas-gathering and processing capability is 2.1 billion cubic feet (0.06 billion cubic meters) daily. In November, the latest figures available, the industry was right at that ceiling — with a record 2.09 billion cubic feet (0.06 billion cubic meters) of natural gas produced daily.
Pipeline capacity is adequate to move the natural gas to market, but it’s the lack of gas-gathering and processing facilities in between that’s the problem. That forces some drillers to restrict oil output at some wells to meet gas flaring rules, said Ron Ness, president of the North Dakota Petroleum Council.
“We don’t want to be restricted by the state,” said Ness, whose group represents hundreds of companies working in North Dakota’s oil-producing region.
Ness said an industry group task force is being formed this month to pinpoint where gas-gathering and processing infrastructure is needed most.
The rules that went into effect in 2014 allow regulators to set production limits on oil companies if the targets are not met. Companies that fail to meet the goals could have production at a well limited to as little as 100 barrels a day, depending on the amount of gas flared.
The rules that were adopted by the state and endorsed by the industry require oil companies to capture 85 percent of the gas by 2016, and 90 percent by 2020. They came after as much of a third of the gas went up in smoke, drawing criticism from environmentalist and many residents who said the state was losing revenue from the wasted gas, and that it contributed to unnecessary carbon dioxide emissions.
Less than 1 percent of natural gas is flared from oil fields nationwide, and less than 3 percent worldwide, the U.S. Energy Department said. North Dakota drillers in November burned off, or flared, about 14 percent of the gas, said Alison Ritter, a spokeswoman for the Department of Mineral Resources, which regulates the state’s oil and gas industry.
Oil production in North Dakota, the second-biggest oil producer behind Texas, rose slightly in November to 1.19 barrels daily and remained above 1 million barrels per day for the 10th consecutive month. A record 1.2 million barrels was produced in December 2014, but had been declining amid weakened oil prices.
The price for North Dakota sweet crude topped $60 a barrel in late December and for the first time since 2015. Fifty-six oil rigs were drilling Tuesday, up 20 from a year ago.
But full exploitation of the state’s oil patch likely will be hamstrung unless infrastructure is built quickly, regulators say.
“Without additional investment in terms of gathering and processing, the industry is running up against it,” Ritter said. “It’s all kind of a race.”
Kringstad, the pipeline authority director, said three gas processing plants are proposed in the next two years, though even if they are built, they would just “keep up” with expected production.
“It’s going to be a challenge,” Kringstad said. “Industry is going to be working hard.”
https://www.washingtonpost.com/business/north-dakota-oil-output-cut-back-to-meet-gas-capture-rules/2018/01/16/b0372d30-fae0-11e7-9b5d-bbf0da31214d_story.html?utm_term=.9bab575f28c8
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Senate Republicans Back CPP Repeal
Jan 16, 2018 | Inside EPA
Republican members of the Senate Environment & Public Works Committee (EPW) are backing EPA's proposed repeal of the Obama-era Clean Power Plan (CPP) utility greenhouse gas rule, telling EPA Administrator Scott Pruitt that the unlawful and over-reaching rule would have eliminated jobs, raised energy prices and hurt communities.
All EPW Republicans signed onto the Jan. 12 letter, including Chairman John Barrasso (WY) and clean air panel Chairwoman Shelley Moore Capito (WV), along with Sens. Jim Inhofe (OK), John Boozman (AR), Roger Wicker (MS), Deb Fischer (NE), Jerry Moran (KS), Mike Rounds (SD), Joni Ernst (IA), Dan Sullivan (AK) and Richard Shelby (AL).
“We write in support of EPA's proposal to repeal the so-called [CPP],” the letter says. It adds the lawmakers oppose the 2015 final rule “because of the pervasive, negative effects it would have had on Americans across the country. . . . By repealing the rule, EPA eliminates up to $33 billion in costs in the year 2030 alone,” they add, referring to a revised cost-benefit analysis the Trump EPA conducted to justify the repeal.
The senators add that the rule transforms the energy sector and was never authorized by Congress so it is unlawful.
“As you work to repeal the CPP, we support EPA's willingness to examine broader questions about how the federal government measures the costs and benefits of EPA regulations,” the letter says, citing a 2016 White House Office of Management & Budget report that found 95 percent of the total cost of EPA rules are from the Office of Air & Radiation (OAR).
“The prior administration employed accounting policies that generated outsized benefits and minimized the costs to justify costly OAR rules, such as the CPP. As you have done in this proposal to repeal the CPP, EPA should continue to examine and correct those issues so that future policies are grounded on sound cost-benefit analyses.
“We stand ready to assist you as you restore EPA's implementation of the Clean Air Act to its intended purpose,” the GOP lawmakers write.
EPW Democrats oppose the repeal as well as changes to the cost-benefit approach.
The letter was likely intended to be filed just ahead of a Jan. 16 deadline to submit comments on the CPP repeal proposal. However, EPA recently announced it plans to extend that deadline to April 26 to accommodate three upcoming listening sessions on the plan.
https://insideepa.com/daily-feed/senate-republicans-back-cpp-repeal
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BP Says Deepwater Disaster will Cost Even More
Jan 16, 2018 | Houston Chronicle
By Collin Eaton
BP anticipates taking a $1.7 billion charge in its fourth-quarter earnings as it pays out the remaining business economic-loss claims stemming from the 2010 Deepwater Horizon disaster, the company said Tuesday.
The British oil company said it now expects to pay some $3 billion in cash payments this year for claims related to a court-supervised settlement program that is winding down after several years. In the third quarter, it had expected those payments to come in at $2 billion for 2018.
"With the claim facility's work very nearly done, we now have better visibility into the remaining liability," BP CFO Brian Gilvary said in a statement.
He said BP can manage the post-tax non-operating charge, "especially now that we have the company back into balance at $50 per barrel."
In April 2010, a blast on the BP-leased Deepwater Horizon drilling rig killed 11 workers and led to the biggest offshore oil spill in U.S. history.
http://www.chron.com/business/energy/article/BP-says-Deepwater-disaster-will-cost-even-more-12500962.php
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U.S. Expected to Become Net Exporter of Natural Gas for First Time in Decades
Jan 16, 2018 | Houston Chronicle
By Ryan Maye Handy
The U.S. could become a net exporter of natural gas in 2018 for the first time since 1957, thanks to increased natural gas exports to Mexico, LNG exports to at least 20 countries and less gas flowing into the country from Canada, according to the U.S. Department of Energy.
Exports of LNG continue to grow, as terminals on the Gulf Coast reach full capacity, and with planned terminal additions in Maryland, Georgia, Texas and Louisiana, the Energy Department expects that by 2019 the U.S. LNG capacity will be the third largest in the world. U.S. pipeline capacity to Mexico is also expected to double by 2019.
As exports of natural gas increased, domestic consumption of natural gas fell in 2017. Natural gas spot prices averaged $3.01 per million British thermal units -- about 50 cents higher than in 2016, when prices reached a near 20 year low.
Higher natural gas prices meant fewer power plants were using the fuel to generate power, and natural gas consumption fell by 6 percent, as compared to 2016.
Future U.S. pipeline exports to Mexico are supported by a near doubling of U.S. export pipeline capacity to Mexico by 2019. However, further growth in natural gas pipeline exports to Mexico will be contingent on the timely completion of Mexico's connecting pipelines, which so far have experienced construction delays.
U.S. marketed natural gas production increased by 1% (1 Bcf/d) in 2017, according to EIA's preliminary estimates for the year. Regionally, natural gas production growth was concentrated in Appalachia—primarily in the Marcellus and Utica shales. Other regions have also increased production, including the Anadarko region in Texas and Oklahoma and the Bakken region in North Dakota.
http://www.chron.com/business/energy/article/U-S-expected-to-become-net-exporter-of-natural-12501317.php
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Bush-Era Oil Research Program Returns to Trump's Washington
Jan 16, 2018 | E&E Energywire
By Nathanial Gronewold
An oil and gas research initiative that had been the darling of the George W. Bush administration hits Capitol Hill this week to pitch a revitalization plan under a new president and a new national policy focused on "energy dominance."
The Research Partnership to Secure Energy for America, or RPSEA, was created by the Energy Policy Act of 2005 and signed into law by Bush. Under contract with the Energy Department for a decade, the program set aside funds from oil and natural gas royalties for research and development of deepwater drilling and unconventional shale and tight rock formations.
RPSEA created a platform connecting the industry with academic institutions to push research and development in fields and in subjects or technical challenges that might otherwise be ignored, using the pool of royalty money to entice oil companies' participation. Usually specific projects required at least a 20 percent private-sector buy-in, but RPSEA said in most instances the private-sector partners supplied at least 50 percent of the R&D funds.
The 10-year program wasn't renewed and has been scrambling to stay alive as an independent nonprofit. But the leadership will now ask lawmakers to reauthorize RPSEA, reviving the initiative's access to federal royalty money.
Even in cost-conscious Washington, RPSEA's advisers think their effort has a shot. To help, they're launching an oil and gas R&D "road map" that they'll be showcasing this week to highlight where research gaps remain and how the original program could be used to plug them.
"They've very keen on cutting costs, but they're also very keen on energy dominance," HBW Resources Executive Vice President Jack Belcher said on the administration and its allies in Congress.
"The message that R&D plays, the important role that it plays in enabling and expanding our ability to produce," he said. "To be dominant in oil and gas production is a message that resonates, and it resonates in the administration, it's resonating on Capitol Hill, and that's exactly what we're doing through the discussion."New focus on Arctic, offshore technology
RPSEA research projects have been credited with solving some difficult technical challenges the oil and gas industry faced in the run-up to and during the shale oil and gas revolutions. The R&D projects were multifaceted. Some sought solutions to limit the environmental impact of access roads and pads. Others directed funding for advanced computer modeling of reservoir characteristics and their likely response to hydraulic fracturing or stimulation techniques.
The 2018 road map, or draft plan, envisions greater research efforts aimed at Arctic resources. The plan also envisions expanded work on offshore drilling R&D, including research on techniques and technologies to exploit "offshore satellite fields."
RPSEA President Tom Williams said the initiative will not only seek a reauthorization of the Energy Policy Act Section 999 program, but also an expansion of RPSEA's scope.
Under the original program, the nonprofit corporation dealt only with DOE and R&D projects restricted to three areas: a small producers' program, ultra-deepwater offshore, and unconventional oil and gas resources. In an interview, Williams said RPSEA would like to develop ties with other federal agencies, in particular the Department of the Interior. And RPSEA's promoters will make the case that all facets of the oil and gas sector should be open for new R&D project consideration.
In the past, RPSEA "was somewhat restricted in that we dealt solely with the Department of Energy solely off the plan, and we were limited to ultra-deepwater and shale," Williams said. "Jack and I are meeting with the Department of the Interior. They have a tremendous role to play, not only from a regulatory but from a technical point of view.
"We're going to engage with them in a big way," he added.
Belcher and Williams confirmed meetings with officials at DOE and DOI, and with members of Congress. They'll highlight its collaboration with DOE's National Energy Technology Laboratory and other academic institutions, and make the case that benefits to the U.S. economy far outweigh the relatively small portion of federal oil and gas royalties that gets diverted to RPSEA-sponsored R&D projects.
"RPSEA, working with the U.S. Department of Energy NETL, successfully managed over 170 projects utilizing $350 million including cost share," says the 2018 RPSEA R&D plan "The research generated over $150 billion in direct economic value from jobs, royalties and revenue."
https://www.eenews.net/energywire/2018/01/16/stories/1060071003
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Jan 16, 2018 | Pittsburgh Courier
By Freddie Allen
Jack Gerard, the president and CEO of the American Petroleum Institute, said that there are incredible career and business opportunities in the petrochemical industry and he’s committed to increasing awareness about those prospects in the Black and Hispanic communities.
API is a national trade association that represents all facets of the oil and natural gas industry, according to the group’s website, and its membership includes “large integrated companies, as well as exploration and production, refining, marketing, pipeline, and marine businesses, and service and supply firms.”
In 2015, the natural gas industry supported more than 4 million jobs across the U.S. “from production to end uses such as manufacturing,” the State of American Energy 2018 report said. “The number is expected to rise to 6 million jobs by 2040.”
Gerard said that if you look at the energy industry, in general, there are still emerging opportunities for new job creation, low-cost affordable energy, and export markets.
“The sky is the limit, to some degree, in our ability to expand and grow and I think that’s exciting, particularly from the job perspective side,” said Gerard. “What we’re trying to do is broaden our base particularly in the Black community about the opportunities that are available.”
That’s why Gerard has committed to speaking to students at historically Black colleges and universities (HBCUs) to dispel some of the myths about the petrochemical industry; some believe that many of the jobs are on oil rigs in Texas or Oklahoma.
“We’ve got to find those partnerships, everything from individual students, who are just rising up to begin to consider their own careers, to small businesses to opportunities all the way up to the C-suite,” said Gerard.
People who work in the oil and natural gas industry are engineers, accountants, and designers; they work in marketing, finance and transportation, Gerard said.
Gerard said that the Black Press can play a number roles in educating the Black community about the opportunities in the oil and natural gas industry.
“We need to identify African American leaders currently in the oil and natural gas industry and profile them; let them talk about their successes, let them share their stories with others,” said Gerard. “We also have to continue our efforts to reach out and educate the community so that people just don’t think that [only a handful of people] got lucky. No, no these opportunities are for everybody.”
The president and CEO of API also said that the oil and natural gas industry must do a better job with communicating a clear message about the impact of the industry on everyday life.
The 2018 State of American Energy report noted that everything from artificial heart valves and air bags to seat belts and astronaut’s space suits are made with petroleum-based products.
Gerard added that the contributions of the oil and natural gas industry extend to the ubiquitous smartphones that millions of Americans use every day.
“The majority of the products and the components in that smartphone come to you via petroleum products, natural gas and oil,” said Gerard. “Without natural gas and oil, you couldn’t build that smartphone the way you use it today, even down to the circuitry that makes it such a high-tech instrument.”
Gerard said that it’s important that African Americans turn their focus toward the oil and natural gas industry, because the career and business opportunities will only continue to grow.
“We’ve got a lot of African American groups that are apart of our strategy to better understand those interests and secondarily how to communicate and educate [the Black community] about those opportunities,” said Gerard. “We just have to stay at it; we have to persevere. We can’t get frustrated after six months, and say ‘well, its not working as fast as we would like it to.’”
Gerard continued: “These are long-term objectives. We’re already gaining some traction. These are generational challenges that don’t [change] overnight. We’ve got to keep pushing the understanding and the opportunity in the African American community.”
https://newpittsburghcourieronline.com/2018/01/16/api-president-jack-gerard-says-that-job-business-prospects-in-the-petrochemical-industry-are-on-the-rise/
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New Jersey Resources' Unit Seeks Permit for 84-Mile Pipeline
Jan 16, 2018 | Zack's (In Nasdaq)
New Jersey Resources Corporation 's NJR subsidiary, Adelphia Gateway, LLC, filed an application with the Federal Energy Regulatory Commission ("FERC") for a certificate of public convenience for authorizing the operation of an existing 84-mile natural gas pipeline and related facilities in Pennsylvania.
With the help of this pipeline, Adelphia Gateway will transport an excess of 250,000 dekatherms of natural gas per day (91 million dekatherms per year) to cater to growing demand in Pennsylvania. The unit expects the aforementioned project to come online by early 2019, subject to pending receipt of permits and regulatory actions.
Adelphia Gateway had purchased the 84-mile pipeline with a view to repurpose the southern 50-mile portion for supplying natural gas to customers in Philadelphia region. The northern 34 miles of the pipeline, extending from western Bucks County to Northampton County, was already converted to deliver natural gas in 1996.
The unit intends to utilize existing infrastructure to meet the growing market demand with minimal new construction and impact to the environment.
Is Natural Gas Demand Rising in Pennsylvania?
Per a report released by the U.S Energy Information Administration (EIA) as of Nov 09, 2017, Pennsylvania currently accounts for 19% of total U.S. natural gas production. The area is seeing an increase in permitting and drilling activity as new pipelines come online.
The Pennsylvania Department of Environmental Protection issued 1,371 natural gas drilling permits in 2016 and 1,447 permits in 2017. Permission and drilling activity in Pennsylvania is concentrated to a few counties with the state's most productive wells. Further, pipeline projects are being developed in Pennsylvania's southwest and northeast regions to transport natural gas to areas experiencing high demand.
Natural Gas's Popularity among Utilities
The fundamentals of natural gas seem favorable, considering the universal shift to cleaner burning fuel for power generation globally, over the long run. The EIA predicts global demand for the commodity to grow from 340 billion cubic feet(Bcf) per day in 2015 to 485 Bcf per day by 2040.
It is evident that to make the most of the rising demand for natural gas as a source of energy, New Jersey Resources and subsidiaries are stepping up to cater to the rising use of natural gas.
The U.S. natural gas companies see a big opportunity in selling cheap U.S. production at higher prices to rest of the world. In fact, more than 50% of the domestic volume growth in the near future will be used for export in the form of liquefied natural gas (LNG).
Notably, the growing use of LNG and higher consumption from industrial projects is likely to ensure strong natural gas demand. We may expect other natural gas-heavy upstream companies like Rex Energy Corporation REXX , Chesapeake Energy Corporation CHK , and Southwest Gas Corporation SWX among others to benefit from rising demand of this energy source.
Price Movement
In the last three months, shares of New Jersey Resources have lost 8.1%, wider than the industry 's decline of 3.2%.
Zacks Rank
New Jersey Resources currently carries a Zacks Rank #4 (Sell).
You can see t he complete list of today's Zacks #1 Rank (Strong Buy) stocks here.
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http://www.nasdaq.com/article/new-jersey-resources-unit-seeks-permit-for-84-mile-pipeline-cm905825
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Headed for the Exit, Christie Lets Green Bills Die
Jan 16, 2018 | E&E Climatewire
By Josh Kurtz
On his last full day in office, New Jersey Gov. Chris Christie (R) effectively vetoed legislation yesterday that would have enabled the state to join the fledgling U.S. Climate Alliance, the bipartisan group of states committed to meeting the greenhouse gas reduction goals of the international climate accord.
He also vetoed a bill that would have established a clean vehicle task force in the state and another that would have created a state solar energy study commission and increased New Jersey's renewable portfolio standard (RPS) for solar.
Environmentalists, though angry, view the setbacks as temporary, because legislation for all three measures has already been introduced in the new state legislative session, and incoming Gov. Phil Murphy (D), who will be sworn in at noon today, is expected to support them.
"The good thing is that these bills are already being reintroduced," said Jeff Tittel, director of the New Jersey Sierra Club. "We believe that not only will the Legislature pass them again, but that Gov. Murphy will sign them."
Christie did not actually veto the legislation. Rather, he took no action on it, resulting in the clock running out on the measures, requiring them to be reintroduced. In the legislative parlance, these amount to "pocket vetoes."
In all, Christie yesterday issued about 50 pocket vetoes and signed more than 100 bills into law.
On the environmental front, Christie signed bills to protect pollinators, to authorize virtual net metering for electric public utility customers who are connected to certain hydropower facilities, to increase the use of recycled asphalt, to boost state oversight of regional sewage authorities, to add new projects to the state Environmental Infrastructure Trust and to conserve more agricultural land.
But his vetoes of the climate, solar and electric vehicles bills still rankled environmental groups.
The New Jersey Legislature passed legislation that would have enabled the state to join the U.S. Climate Alliance, which was formed by three Democratic governors immediately after President Trump announced that the United States would be withdrawing from the Paris climate accord. Thirteen states have now joined the alliance, including three — Massachusetts, Vermont and Maryland — with Republican governors (Climatewire, Jan. 12).
The solar study legislation would have set a goal of using 5 percent solar energy in the state RPS, and it would have accelerated the timetable for meeting the current solar goal of 4.1 percent, from 2027 to 2022. Environmentalists and their Democratic allies saw the clean vehicles task force as crucial because Christie and legislative Republicans have blocked tax credits and funding measures for electric vehicle charging stations.
"Vetoing these bills is troubling and reckless," Tittel said. "It makes us more vulnerable to being impacted by climate change and hurts clean jobs. Instead of moving us forward with clean vehicles, he's a roadblock for them. He is darkening our solar program and not allowing New Jersey to follow the steps of other states by supporting the Paris accord. Gov. Christie has continued his anti-environmental agenda to the last day, at the expense of the people of New Jersey."
Christie offered no explanation for his last-minute decisions on bills the Democratic-controlled Legislature had passed.
At his farewell State of the State address last week, Christie did not directly mention climate or the environment — though he did talk at some length about the state's response to Superstorm Sandy, which hit in the fall of 2012.
"Superstorm Sandy was a defining moment of our last eight years," Christie said. "It was our greatest challenge and provided us with our most satisfying personal and professional moments. All New Jersey proved we were, in fact, stronger than the storm."
Christie spoke at length about restoring order in the state in the weeks and months following the storm. He also talked about helping residents with their insurance claims and getting them back into their homes. But he also talked about steps the state has taken to prepare for future disasters, using words like resiliency and restoration but not climate change.
"We have engaged in a $1 billion coastal restoration project to build dunes and other protections to ensure that another Sandy-type event does not devastate our Jersey shore," he said. "From Cape May to Union Beach, we are building protections that our citizens will be able to count on for decades to come. Leaving our shore unprotected again was not acceptable after the devastation of Sandy. We have also built sea walls in Sea Bright, put up sheet piling in Mantoloking, mitigation on the Hackensack River, pump stations in Brigantine, tide gates in Little Ferry and piping systems in Belmar's Lake Como. We are more prepared today than at any time in our history, and it happened because we not only wanted to recover but rebuild stronger."
Most environmental groups are happy to see Christie go and are eager for Murphy to take office. Murphy pledged to get New Jersey back into the multi-state Regional Greenhouse Gas Initiative and is opposing the Trump administration's push to expand offshore drilling in the Atlantic Ocean. His wife, Tammy Snyder Murphy, is secretary on the board of former Vice President Al Gore's Climate Reality Action Fund.
Christie, who is 55, has not revealed what he plans to do next, but there is some speculation that he could wind up in the Trump administration.
"I leave you today grateful, happy and a better man than I was when I walked in here for the first time eight years ago," he told lawmakers at his farewell address last week.
https://www.eenews.net/climatewire/2018/01/16/stories/1060071033
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EWire: Shutdown Talk Boosts EPA Budget Uncertainty
Jan 16, 2018 | Inside EPA
Congressional leaders have concluded they cannot reach a broad spending deal for the remainder of fiscal year 2018 by a Jan. 19 deadline, according to news reports, raising the chances that the government will shut down if Congress fails to pass another short-term funding extension.
The dynamic is increasing the uncertainty for EPA's budget, which faces varying levels of cuts in FY18 under Trump administration, House and Senate proposals.
However, Democrats -- which would be called on to supply at least some votes for a spending deal -- are demanding that overall budget caps be lifted for both defense and non-defense spending, a move that could theoretically alleviate some of the pressure on EPA's budget.
The deal remains elusive because of several other high-profile policies, including protections for immigrants brought to the country as young children and the extension of funding for health insurance programs.
The Washington Post reports that aides to top negotiators are meeting Jan. 16, with the lawmakers slated to meet the following day. “If they cannot agree, the government would shut down at midnight Friday for the first time since 2013,” the Post writes.
The story says that a new stop-gap funding measure would probably last until mid-February, though it is far from clear whether Republicans could rally a majority of their caucus behind such a measure. Some Democrats are threatening to withhold their support if the measure does not include the immigration protections.
The New York Times looks at the politics of the situation, noting that many Democratic senators running for re-election in states won by President Donald Trump are wary of such a strategy while their more liberal colleagues are pushing for a hard line.
But Republicans -- who have full control over the White House and Congress -- could still “receive most of the blame for a shutdown,” the Times says, even if it is precipitated by an immigration dispute.
Late last year, a group of Democratic state attorneys general urged Congress to maintain EPA's current budget of roughly $8.05 billion, which the House's spending bill would cut to $7.4 billion and the Senate's proposed legislation to $7.91 billion.
The officials also urged Congress to ensure environmental enforcement is fully funded, and to avoid several GOP-proposed policy riders, including several targeting climate and water rules and a provision that would eliminate the Integrated Risk Information System risk assessment program.
https://insideepa.com/daily-feed/ewire-shutdown-talk-boosts-epa-budget-uncertainty
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Could 'Sue-and-Settle' Ban Backfire for Trump Team?
Jan 16, 2018 | E&E Greenwire
By Amanda Reilly
In its quest to overturn regulations, the Trump administration has left no stone unturned, including taking on legal tools commonly used to resolve environmental law disputes and hold polluters accountable.
During the administration's first year, Attorney General Jeff Sessions barred the Justice Department from entering into settlement agreements that funnel money to third parties, cutting off a key funding stream for environmental projects. U.S. EPA Administrator Scott Pruitt issued a sweeping directive that in part requires agency lawyers to seek concurrence from regulated entities before entering into settlements.
President Trump's embrace of the notion that settlements have been abused in the past by both federal agencies and environmental groups has delighted critics of the former Obama administration.
But the bull's-eye on settlement agreements during the first year of the Trump presidency has also alarmed former officials, who say the administration's actions will make it harder for agencies to resolve disputes, will increase the costs of litigation and, in a twist, will make it more likely that plaintiffs will be able to set the direction of an agency.
"The irony is that if an agency becomes much less willing to settle, then its rulemaking agenda and schedule will just be set by which lawsuits are brought and what the judges tell them," said Ethan Shenkman, who served as EPA's deputy general counsel during the Obama administration.
At the very least, the Trump administration's actions have reignited a long-simmering debate over whether settlements have been twisted for political purposes.
Industry and congressional critics began using the phrase "sue and settle" during the first term of the Obama administration to describe what they saw as gaming of the system by federal agencies and a recurring cast of environmental players, including the Sierra Club, the Natural Resources Defense Council, Defenders of Wildlife, the Center for Biological Diversity and WildEarth Guardians.
The charge goes like this: Environmentalists sue a friendly federal agency and then negotiate a settlement that forces a burdensome regulatory agenda on industry, all with the blessing of the courts. Regulated entities and states are left out of the loop.
At a 2012 House Oversight and Government Reform Committee hearing titled "Mandate Madness: When Sue and Settle Just Isn't Enough," Pruitt, then attorney general of Oklahoma, testified along with representatives from the Competitive Enterprise Institute and U.S. Chamber of Commerce.
"With the backing of the Obama administration, the EPA is engaging in super-legislative activity that Congress has not authorized, resulting in unchecked rulemaking through questionable consent decrees," Pruitt said, focusing his testimony on the agency's regional haze program.
A 2013 U.S. Chamber report documented 71 times that federal agencies settled litigation with special-interest groups between 2009 and 2012; EPA was the defendant in 60 of those cases. The group claimed that the settlements required EPA to publish more than 100 new regulations imposing billions of dollars in compliance costs for industry.
The report, for example, noted that settlements with environmental groups led to the issuance of hazardous air pollution standards for power plants. Critics also say the Obama administration colluded with environmental groups to come to a 2010 settlement that ultimately led to the issuance of the Clean Power Plan, which the Trump EPA is working to repeal.
It's not just at EPA. Critics say a sweeping 2011 settlement that the Fish and Wildlife Service entered into with WildEarth Guardians and the Center for Biological Diversity compelling the agency to make decisions on whether to list 252 species under the Endangered Species Act is one of the most egregious examples of sue and settle.
The criticism also spread to consent decrees in enforcement cases. According to House Republicans, the Obama administration used such court orders to funnel money toward progressive causes in an end run around Congress.
The settlement with Volkswagen AG to resolve the diesel emissions scandal has been a frequent target of criticism because it provided money toward an electric vehicle program that Congress twice refused to fund.
"There's a legitimate role for consent decrees and private suits," Rep. Gary Palmer (R-Ala.) said at a hearing last year. "But I think we're currently in a situation where we're outside what would be acceptable."
In the past, House bills targeting both sue and settle and consent decrees in enforcement cases went nowhere because of veto threats by former President Obama. When the Trump administration took office, though, it put into place several of the policies that critics have long sought.
The June memo by Sessions barred the government from entering into an agreement settling federal claims or charges "that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute."
Along with requiring EPA lawyers to "seek concurrence" with industry entities before entering into settlements, the Pruitt directive barred the agency from seeking attorneys' fees from environmental groups in settlement negotiations and required the Office of General Counsel to post litigation information online.
"The days of regulation through litigation are over," Pruitt proclaimed when issuing the directive.
Environmentalists, though, have long slammed critics of legal settlements and consent decrees, saying that complaining about the legal process is merely another avenue to oppose environmental and public health protections.
"This idea that Obama had this secret play is just a bullshit narrative being perpetrated by people who never liked Obama in the first place," said Bill Snape, senior counsel with the Center for Biological Diversity.
Former officials also counter the idea that the Obama administration regularly "colluded" with environmental groups.
"In my 22 years at the Department of Justice, I can clearly say that during the time period I was supervising that there was not a single one — not one example — where there was somehow collusion with an opposing party," said John Cruden, who left DOJ at the end of the Obama administration after serving as the department's top environmental attorney.'The model had been set'
A settlement with Volkswagen AG to resolve the diesel emissions scandal has been widely criticized because it sent money to an electric vehicle program that Congress refused to fund. Lukasz Jernas/Flickr
While "sue and settle" entered the lexicon during the Obama administration, when and how agencies settle lawsuits has long been contentious.
"There's always been an issue about how to handle settlements in rulemaking cases because basically what the agency is doing in settling rulemaking cases is agreeing to publish for comment a particular proposal that's been agreed to among parties, so that's different from the normal rulemaking process," said Jonathan Cannon, who served as EPA's general counsel during the Clinton administration. "The question is always: Is that somehow short-circuiting the rulemaking process or limiting public participation in a way that we should be concerned about?"
During the George W. Bush administration, environmentalists charged that government engaged in closed-door negotiations with industry.
"Generally what would occur is an industry, think oil and gas — a lot of times they would sue the agencies, say DOI, because you were supposed to give us an oil and gas permit and you didn't," Snape said. "What started happening is these lawsuits were being filed, and the Bush administration was settling."
In a 2004 paper, Lewis & Clark Law School professor Michael Blumm documented four of what he called "sweetheart settlements" reached during the first term of the Bush administration in litigation over public lands policy. Industry settlements during that time, he found, resulted in a change in the federal government's approach in exemptions from the roadless rule, wilderness study areas, species protections in the Pacific Northwest and snowmobiling in Yellowstone National Park.
"I think that the model had been set in the first term of the Bush administration," Blumm said in a recent interview. "They went out and I think invited industry suits — or certainly didn't discourage them — and then took actions consistent with the industry's position."
"It sure didn't start with the Obama administration."
Jim Banks, an attorney at Hogan Lovells, traces the controversy back to the 1970s, to what's known as the Flannery Decree.
The Natural Resources Defense Council had sued EPA for missing statutory deadlines in the Clean Water Act to set toxicity standards for certain pollutants. In settlement negotiations, EPA proposed changing the way it regulated toxic pollutants from a pollutant-by-pollutant approach based on toxicity to an industry-by-industry approach based on technology.
Judge Thomas Flannery. OpenJurist
Industry tried several ways to scuttle the 1976 decree and the deadlines it set for the agency. When Congress passed most of the decree into law, industry asked the late Judge Thomas Flannery of the U.S. District Court for the District of Columbia — who originally greenlighted the settlement — to overturn it. Flannery left the settlement in place, and the U.S. Court of Appeals for the District of Columbia Circuit upheld the decision.
"It really was the first large-scale example of sue and settle," said Banks, who was an NRDC attorney at the time. "And in that case, you had EPA agreeing to regulate 21 categories of industry, and virtually all of those industries through their trade associations were in the case ... it was a donnybrook right from the beginning."
Critics acknowledge that administrations settled lawsuits before President Obama took office. But according to the U.S. Chamber, the number of settlements between agencies and environmentalists has increased over the past decades. According to the group, after its initial 2013 report, the Obama EPA agreed to an additional 77 consent decrees under the Clean Air Act; the Bush administration settled 66 suits during its entire two terms under the law.
Environmentalists counter that they don't actually sue federal agencies a whole lot more frequently than industry. The Center for Biological Diversity shared numbers with E&E News showing that, in 2016, environmentalists brought about 40 percent of cases under environmental laws, compared to 30 percent brought by industry. The government initiated 12 percent of claims. The numbers exclude claims related to the 2010 BP PLC oil spill and the VW emissions scandal.'Crazy not to settle'
Environmentalists and former officials both say that the criticism of the Obama administration glosses over the fact that most of the lawsuits at issue arose because EPA or another federal agency blew by a deadline that Congress wrote into law.
Environmental laws contain a variety of deadlines compelling EPA to either set or review standards for a variety of pollutants and industries. When the agency misses the deadline, environmentalists sue using citizen suit provisions.
Robert Glicksman, a law professor at George Washington University, said that agencies are notoriously bad at meeting statutory deadlines, both because Congress is unrealistic about the requirements it imposes on agencies and because agencies are often underfunded.
"It may be that they decide that they think an action that is not subject to a deadline is more important than an action that is covered by a deadline," he said.
Other times, an agency might miss a deadline because the political leader may see it as running contrary to policy goals. That means that lawsuits are often the only way to force an agency to follow congressional mandates, Glicksman said.
"The citizen suit mechanism, as it applies to suits against agencies, has the really critical role in forcing agencies to perform nondiscretionary duties that they've let fall by the wayside," he said.
Agencies, with DOJ acting as their attorney, settle so many of these types of suits because it's really difficult to mount a successful defense when an agency has missed a deadline.
"Certainly there are, I'm sure, circumstances in which there are some political motivation built into a settlement, but all the settlements that people fixate on are no-brainer settlements if you're the government," said Justin Pidot, a former Justice Department environmental attorney who also spent time at the Interior Department during the Obama administration.
Cruden, the former assistant attorney general in charge of DOJ's Environment and Natural Resources Division, said it's particularly difficult to defend against lawsuits that charge EPA has missed Clean Air Act deadlines, such as those for national ambient air quality standards. Under the law, for example, EPA is supposed to review, and if necessary revise, its NAAQS for six criteria pollutants every five years. The agency frequently misses that deadline.
"An environmental group may sue describing a statutory deadline, usually very specific deadline, that has not been met, sometimes for many years," Cruden said. "There may be no realistic defense to such a lawsuit other than seeking more time to comply."
Cruden led ENRD from 2014 through the end of the Obama administration. In that role, he saw "virtually all" environmental settlement agreements negotiated between the government and outside parties.
"I would say that we had very common criteria that we used in determining whether or not we would settle," Cruden said. "And that was, would the settlement be better for the federal government than anything we could achieve in court? And if a settlement was better, we were kind of crazy not to settle."Decision-forcing vs. substantive relief
U.S. EPA Administrator Scott Pruitt issued a directive that in part requires agency lawyers to seek concurrence from regulated entities before entering into settlements. Pruitt/Facebook
Critics acknowledge that the failure to meet deadlines drove most sue-and-settle lawsuits during the Obama administration. For their part, EPA officials say they plan to get better at hitting deadlines. But both the Trump administration and industry have said that settlements go beyond just enforcing deadlines in the law, instead setting substantive requirements on agencies, in apparent violation of a DOJ memo that generally bars such settlements.
They say, for example, that the Obama EPA agreed to timetables and specific pollution limits in a settlement with environmentalists that led to the total maximum daily loads, or TMDLs, for the Chesapeake Bay. And in the 2011 Endangered Species Act settlement, FWS agreed not to find that any of the species fell under the category "warranted but precluded," a designation that kicks a listing down the road.
"Even when a regulation is required, agencies can use the terms of sue-and-settle agreements as a legal basis for allowing special interests to dictate the discretionary terms of the regulations," said Bill Kovacs, former senior vice president of environment, technology and regulatory affairs for the U.S. Chamber, at a congressional hearing earlier this year.
But in a 2014 report in response to an inquiry from top Republicans on the House Energy and Commerce Committee, the nonpartisan Government Accountability Office said it found that sue-and-settle lawsuits brought by environmental groups have only a "limited" impact on EPA regulations and that settlements didn't dictate the substantive outcome of a rule.
A 2016 study bolstered the finding that agencies rarely agree to take substantive action in settlements in environmental litigation.
In the October 2016 article, Ben Tyson, a litigation associate at Kirkland & Ellis LLP who was then a graduate student at the University of Virginia, examined 88 sue-and-settle cases during the Obama administration under the Clean Air Act, Clean Water Act and Endangered Species Act, 60 of which appeared in the U.S. Chamber's report.
Of the 79 cases environmentalists brought, 75 were resolved with consent decrees that set a timeline for future agency action without holding the agency to any specific action. Four brought "substantive relief" that tied the agency's hands in proposing a certain type of regulation, including a 2010 settlement with WildEarth Guardians in which NOAA Fisheries agreed to issue recovery plans for sperm, sei and fin whales.
Of the nine times that industry settled lawsuits brought under the environmental statutes during the Obama administration, five imposed substantive obligations on an agency. For example: In a 2012 agreement with the American Forest & Paper Association, EPA agreed to propose certain substantive rules on mandatory greenhouse gas reporting.
"There are some few cases where the agency settles cases, rulemaking litigation, in a way that might raise concerns about adequate public participation. Those cases are not predominantly brought by environmental groups. They're brought by both industry and environmental groups," said Cannon, the former EPA general counsel, who is now a law professor at the University of Virginia. He helped with the October 2016 paper.
"So this notion that somehow, during the Obama administration, environmentalists were colluding with the agency with some sort of subterranean effort to fix the rulemaking process is wrong," he said.
Cruden puts it this way: "Administrator Pruitt was correcting a problem that did not exist."
When issuing his directive in October, Pruitt did not name any specific settlement agreements in which EPA previously colluded with environmental groups, instead citing the decades-old dissent in the Flannery decree case that came prior to the modern iterations of environmental laws and DOJ's current policies on settlement agreements.'Forced to litigate more'
Aside from substance, critics say settlement agreements force a federal agency like EPA to follow an outside group's priorities rather than its own. In other words, when an agency becomes legally bound to exert resources toward meeting a deadline in a settlement agreement, it can't pursue the policy choices that it really wants.
But Shenkman, the former EPA deputy general counsel, said that settlement negotiations offer the agency a chance to align rulemaking schedules with its priorities.
"To the extent that EPA is able to negotiate with the plaintiffs that bring these, then they may be able to produce schedules that are more in line with how they want to prioritize and spend their resources," he said.
In a recent letter opposing the Pruitt directive, 57 former EPA attorneys also said that courts often force stricter timelines on agencies than they request or than can be achieved in settlement negotiations.
In late December, for example, the 9th U.S. Circuit Court of Appeals found EPA to have illegally delayed lead-based paint standards, ordering the agency to issue a proposal within 90 days and finalize it a year later. The Trump administration had asked the court for six years.
Former officials concede that it's too early to forecast all the consequences of the Trump administration's actions, but they say that it could mean greater costs for taxpayers if the government prolongs litigation that could otherwise be easily settled.
And plaintiffs will likely still seek attorneys' fees that they're entitled to under the law, regardless of any ban on seeking such fees during settlement negotiations, said Pidot, the former DOJ and Interior official.
"The fees will be more because they're forced to litigate more," he said.
Libertarian group Niskanen Center has slammed the effort to halt sue and settle as running counter to the "rule of law" ideals that Pruitt has promoted as agency administrator.
"Sue and settle" is a "pejorative term," said David Bookbinder, the group's chief counsel and a former attorney for the Sierra Club. "It sounds bad, but in fact, the people doing the suing are enforcing the law that Congress set. It's remarkable to me that people regard this as a bad thing when what they're doing is enforcing deadlines that Congress wrote."
As for the Trump administration's actions?
Bookbinder said: "It's red meat for the base."
https://www.eenews.net/greenwire/2018/01/16/stories/1060071071
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