Preview Newsletter
ACC PM 02/02/18
-
Trump Will Again Try to Eliminate CSB — Official
Feb 2, 2018 | Bloomberg (In E&E Greenwire)
By Ari Natter
President Trump will again seek to zero out the U.S. Chemical Safety Board in his fiscal 2019 budget plan, according to a senior government official familiar with the proposal. -
Advisory Panels: Second Lawsuit Filed on US EPA Grantee Ban
Feb 2, 2018 | Chemical Watch
By Julie A. Miller
A second lawsuit has been filed in an attempt to overturn the US EPA's policy barring anyone receiving grant money from the agency from serving on its scientific advisory panels. -
As War on Plastic Expands, Industry Resists New Limits
Feb 2, 2018 | Sacramento Bee (In E&E Greenwire)
By Billy Kobin
After successfully pushing a ban on single-use plastic bags, environmental advocates are looking to restrict a variety of other plastic products, including straws and bottle caps. -
Why Senators Rebel
Feb 2, 2018 | The Atlantic
By Michelle Cottle
Imagine you’re a member of the U.S. Senate, constitutionally charged with vetting Donald Trump’s nominees to federal agencies and courts. -
(ACC Mentioned) Staffers Defend Chemical Review Program Under Deep Scrutiny
Feb 2, 2018 | E&E Greenwire
By Corbin Hiar
U.S. EPA's chemical assessment program has powerful critics in Congress, the Trump administration and industry, but that doesn't deter career staffers leading it, they told the National Academies of Sciences, Engineering and Medicine yesterday. -
Risk Evaluation, Prioritisation Addressed in US EPA Progress Report
Feb 2, 2018 | Chemical Watch
By Julie A. Miller
The US EPA has published a mandated progress report on evaluation of existing chemicals under the new TSCA that gives some details on the agency's upcoming timetable. -
Coffee in California May Soon Come With a Spoonful of Cancer Warnings
Feb 2, 2018 | The Washington Post
By Tim Carman
“I’ll have the double espresso with human carcinogen.” -
Legislative 'Reform' to Narrow States' Power — Chatterjee
Feb 2, 2018 | E&E Energywire
By Saqib Rahim and Nick Sobczyk
A leaked White House memo suggests the Trump administration is exploring ways to rein in a key state power over natural gas pipelines. -
Cities Pepper Courts with Climate Cases. Oil is the Target
Feb 2, 2018 | E&E Climatewire
By Anne C. Mulkern
Lawsuits against oil companies for damages connected to climate change are mounting. -
Do Big Finds Point to a Rebound? Not in the Gulf
Feb 2, 2018 | E&E Energywire
By Nathanial Gronewold
Major discoveries in the Gulf of Mexico and beyond hint at a revival in offshore drilling, but statistics and energy experts say otherwise -
D.C. Circuit Rejects FERC Request to Retain Pipeline Permits
Feb 2, 2018 | Inside EPA
An appellate court is rejecting federal energy regulators' request to reconsider a landmark ruling vacating key permits for a major natural gas pipeline network in the Southeast because it found the regulators failed to analyze the downstream greenhouse gas effects of the gas when it is burned at power plants. -
Senate Bill Would Require Two Crew Members on Trains Hauling Cargo
Feb 2, 2018 | Transportation Today
By Aaron Martin
Freight trains carrying cargo would be required to have at least two crew members on board in an effort to improve safety and emergency response in the event of derailments under a bill introduced in the Senate on Wednesday. -
Senators Renew Push for 2-Person Oil Trains
Feb 2, 2018 | E&E Energywire
By Blake Sobczak
Sen. Heidi Heitkamp (D-N.D.) introduced a bill this week to require two-person crews on freight trains hauling crude oil and other hazardous materials. -
Critics on New Leasing Policy: 'BLM is Inviting Lawsuits'
Feb 2, 2018 | E&E Energywire
By Ellen M. Gilmer
Environmentalists are eyeing the courtroom after the Trump administration this week unveiled new policies for oil and gas leasing on public lands. -
Pruitt: Goal is to Roll EPA Back From 'Weaponized' Past
Feb 2, 2018 | The Hill - E2 Wire
By Miranda Green
While environmentalists lash out at the Trump administration over blocked Obama-era regulations, Environmental Protection Agency (EPA) Administrator Scott Pruitt says they should first look at Congress. -
Emails: Pruitt Monitored Changes to EPA Webpages on Climate
Feb 2, 2018 | AP (In The New York Times)
Newly released emails show Environmental Protection Agency Administrator Scott Pruitt personally monitored efforts last year to excise much of the information about climate change from the agency's website, especially President Obama's signature effort to reduce planet-warming carbon emissions from coal-fired power plants. -
Greens File Lawsuit Seeking Agency FOIA Documents
Feb 2, 2018 | E&E Greenwire
By Amanda Reilly
Environmental groups have filed a Freedom of Information Act lawsuit over U.S. EPA's delayed responses to FOIA document requests.
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News
Environment News
-
Trump Will Again Try to Eliminate CSB — Official
Feb 2, 2018 | Bloomberg (In E&E Greenwire)
By Ari Natter
President Trump will again seek to zero out the U.S. Chemical Safety Board in his fiscal 2019 budget plan, according to a senior government official familiar with the proposal.
The White House Office of Management and Budget informed the agency in November that the proposal would seek its elimination, the person said.
CSB's current budget is $11 million. Trump also sought to cut the independent agency in last year's budget, prompting shock and confusion from board members (Greenwire, March 17, 2017).
"While CSB has done some outstanding work on its investigations, more often than not, its overlap with other agency investigative authorities has generated unhelpful friction," the White House said in last year's budget proposal. "In recent years, CSB's recommendations have also been focused on the need for greater regulation of industry, which has frustrated both regulators and industry."
A CSB spokeswoman referred questions to OMB, which did not respond to requests for comment. The budget proposal is slated to be formally released Feb. 12.
"The U.S. averages more than 1,000 major industrial chemical accidents every year," Jeff Ruch, executive director of Public Employees for Environmental Responsibility, said in an email. "Eliminating any federal capacity to learn the causes of potentially catastrophic industrial accidents would be unwise in the extreme."
https://www.eenews.net/greenwire/2018/02/02/stories/1060072767
-
Advisory Panels: Second Lawsuit Filed on US EPA Grantee Ban
Feb 2, 2018 | Chemical Watch
By Julie A. Miller
A second lawsuit has been filed in an attempt to overturn the US EPA's policy barring anyone receiving grant money from the agency from serving on its scientific advisory panels. The Union of Concerned Scientists took the legal action on behalf of its members on 23 January.
EPA Administrator Scott Pruitt announced the bar in a Directive in October. He argued that researchers dependent on grants could favour regulatory policies they think will lead to more funded research.
Several days later, Mr Pruitt made appointments to three panels that increased the participation of scientists employed by industry.
The first lawsuit – filed by Earthjustice in December, on behalf of academic groups and individual scientists – argued that the Directive violates ethics regulations, the Advisory Committee Act and laws applicable to the specific advisory panels.
The UCS petition similarly says that the Directive conflicts with longstanding government-wide and EPA ethics policies, and does not follow statutory procedure for promulgating new ethics rules.
But it focuses primarily on arguing that the Directive is "arbitrary and capricious" as it discriminates against academic scientists in favour of those affiliated with industry and state or local government. The latter group is specifically allowed to participate on advisory panels even if they are involved with EPA grants.
"By effectively singling out academic members of the scientific community who are receiving EPA grants, and by making no effort to exclude others who stand to benefit far more significantly from agency action (or inaction), the Directive lays bare its real function: to stack the deck against scientific integrity," the petition says. "The intent and effect of the ban is to disproportionately discount the viewpoints of academic scientists."
A summons in the UCS case was issued on 23 January, and Mr Pruitt has 60 days to respond. The EPA must respond to the first lawsuit by late February.
https://chemicalwatch.com/63622/advisory-panels-second-lawsuit-filed-on-us-epa-grantee-ban
-
As War on Plastic Expands, Industry Resists New Limits
Feb 2, 2018 | Sacramento Bee (In E&E Greenwire)
By Billy Kobin
After successfully pushing a ban on single-use plastic bags, environmental advocates are looking to restrict a variety of other plastic products, including straws and bottle caps.
They also want more recycled material in plastic water and soda bottles, an effort backed by the recycling lobby.
But the plastic and beverage industries intend to put up a fight and have already defeated one bill that would have kept retailers from selling bottled beverages with a cap that's not attached to the container.
"We expected that pushback from the industry," said Assemblymember Mark Stone (D), who introduced the bill. "But at some point, we really owe it to ourselves to pursue a comprehensive strategy to limit overall plastic usage."
Republicans say this effort and others — including a recent bill intended to limit plastic straw use — are examples of "nanny government."
California has taken the lead on state-level plastic efforts. In addition to the bag ban, the state banned microbeads in cosmetics.
The American Beverage Association has spent millions of dollars fighting these efforts.
Mark Murray, executive director of Californians Against Waste, said the industry helped sway lawmakers against the bottle cap bill.
Lawmakers "told us, 'Oh, I've got a Coke facility in my district,' or 'Oh, I've got a bottled water facility in my district,'" Murray said. "At the end of the day, I'm not sure legislators were all that focused on the substance of [Stone's bill]."
https://www.eenews.net/greenwire/2018/02/02/stories/1060072739
-
Feb 2, 2018 | The Atlantic
By Michelle Cottle
Imagine you’re a member of the U.S. Senate, constitutionally charged with vetting Donald Trump’s nominees to federal agencies and courts. (Don’t panic. It’s only pretend.) More specifically, imagine that you’re a Republican senator, under pressure from your base and your leadership to confirm as many nominees as possible as swiftly as possible.
Maybe you love this president. Maybe you hate him. Maybe you hate him but represent a state that loves him. No matter: Team loyalty dictates that you give his picks every benefit of the doubt.
So what happens when a nominee lands in your lap who is so unqualified, politically toxic, or otherwise problematic that you simply cannot vote “yes”?
For real Republicans serving in the real Senate, this is when things get interesting.
Majority members recognize the political hazards of crossing a president from their own party, not to mention one with an itchy Twitter finger. That said, they also want to avoid being tagged partisan lickspittles willing to swallow whatever this president dishes out. These days, with Republicans taking heat for circling the wagons around Trump even on radioactive matters like the Russia probe, it makes increasing political sense for lawmakers to signal their non-lickspittleness by taking on some of the president’s more alarming nominees.
Just don’t read too much into their pushback.
As is often the case, such mini rebellions tend to be driven at least as much by concerns over pet issues, institutional prerogatives, and personal pique as by concerns over the actual quality of Trump’s choices. “Anybody who’s saying, ‘Oh, there is a concerted effort behind the scenes’ is probably going out of their way to make themselves seem good,” cautioned a Republican aide. “Like everything in politics, this all comes down to people and personalities.”
Already, Trump has had nominees fail for a wide range of posts, including cabinet seats (Andrew Puzder for Secretary of Labor), agency chiefs (Scott Garrett at the Export-Import Bank; Tom Marino for drug czar), agency sub-chiefs (Michael Dourson to head the EPA’s chemical safety division), chief scientists (Sam Clovis at USDA), general counsels (Ryan Newman for the Army; David Ehrhart for the Air Force), and, of course, judges (Brett Talley, Jeff Mateer, and Matthew Petersen for federal district court seats). Jim Bridenstine’s bid to head NASA is technically alive but widely expected to remain, as a Republican aide put it, “on ice.”
Lawmakers’ reasons for opposing a nominee vary widely, as does the degree to which members opt to make their objections known. “This is all on a case-by-case basis,” stressed the GOP aide.
John McCain, chairman of the Armed Services Committee, was not shy about his displeasure that David Ehrhart, Trump’s pick for Air Force general counsel, came from the defense giant Lockheed Martin. McCain felt that the Pentagon was being stacked with too many industry players. Ehrhart’s nomination never made it out of committee.
Similarly, McCain wasn’t high on Ryan Newman to serve as Army general counsel. Newman does not favor requiring women to register for the draft; McCain does. Newman’s nomination also stalled in committee.
Labor Secretary-wannabe Puzder didn’t rub any one Senator the wrong way so much as multiple Republicans balked at the accusations of spousal abuse swirling around him, as well as his having employed an undocumented immigrant as his housekeeper.
Representative Tom Marino’s shot at drug czar was derailed by revelations that legislation he shepherded in 2016 had knee-capped the DEA’s fight against opioid abuse.
Michael Dourson will not be overseeing chemical safety at EPA thanks to Richard Burr’s and Thom Tillis’s concerns about his consulting work for the chemical industry. In explaining their objections, the North Carolina Senators cited water-contamination crises in their home state.
Scott Garrett will not head the Ex-Im bank because of his assaults on the institution during his time in Congress. Garrett’s antipathy did not sit well with manufacturing and business interests, which in turn did not sit well with some Republicans. Tim Scott and Mike Rounds cast the “No” votes to stop the nomination from clearing the Banking Committee.
Jeff Mateer’s court nomination was abandoned after Judiciary Committee Chairman Chuck Grassley warned the White House that confirmation was a long shot. Grassley and others were troubled by the culture-warring nominee’s past remarks on subjects like gay-marriage (a “disgusting” step on the slippery slope to bestiality, as Mateer sees it), homosexuality more broadly (he’s a fan of conversion therapy), and transgender children (proof that “Satan’s plan is working”).
The ongoing (possibly eternal) delay in Representative Jim Bridenstine’s confirmation to head NASA is seen as a classic case of political score settling. Yes, he lacks the scientific background some might expect in the job. But the bigger black mark, say Republicans, is that, during the 2016 presidential primaries, he attacked Marco Rubio. (Bridenstine was Team Cruz.) Rubio has insisted he doesn’t hold a grudge. Even so, he has emerged as the congressman’s most ardent critic, brandishing the high-minded argument that the space program should be led by a scientist, not a political animal.
Strike one against Sam Clovis was that he lacked the hard-science background typical of the USDA’s chief scientist. Strike two: While co-chairman of Trump’s 2016 campaign, Clovis encouraged foreign-policy adviser George Papadopoulos’s efforts to foster ties between the campaign and Russian officials. Strike three: Clovis’s work as a talk-radio host. Some of his commentary had already drawn fire from Democrats. (Clovis isn’t much for gay rights, and he has his doubts about global warming.) Republicans feared that more controversial shoes were yet to drop. “The guy was a shock jock, and folks didn’t want to have basically another sound bite basically dropping every day of confirmation hearings,” said the GOP aide. “Enough members of the Ag Committee went to [Chairman Pat] Roberts and said, ‘We don’t want to have to deal with this nightmare.’”
Then there’s Louisiana Senator John Kennedy’s shivving of multiple district court nominees. Kennedy was among those put off by Jeff Mateer. (The senator’s office ignored multiple requests to chat.) But his first high-profile takedown was of Brett Talley, the rare nominee to draw a unanimous “unqualified” rating from the American Bar Association. (An erstwhile horror novelist and ghosthunter, Talley had scant trial experience.) Despite his weak resume, Talley’s nomination cleared committee on a party-line vote. But it soon came to light that he’d failed to disclose that his wife is chief of staff to White House counsel Don McGahn, the guy spearheading Trump’s judicial picks. Worse, reports surfaced that Talley had been a prolific poster on a sports website, with many spirited political observations—including a defense of the early KKK.
Kennedy pounced. “I had no idea of his connection” to McGahn’s office, the Senator fumed to reporters. “And he’s never tried a lawsuit in his natural life. And he’s gonna be on the federal bench? Give me a break. A break. It is embarrassing. And I think the president of the United State is getting some very, very bad advice.” Kennedy vowed that, if Talley’s nomination came to the floor, he would vote against him “in a heartbeat—twice, if I can.”
Democrats “were caught off guard, pleasantly” by Kennedy’s stand, a Democratic aide told me. Such statements are invaluable in thwarting bad picks, stressed the aide. “The most powerful thing is for a Republican Senator to signal to the White House, ‘Stop making me eat shit!’”
Kennedy wasn’t done. Just days after Talley withdrew, Kennedy humiliated nominee Matthew Petersen during his confirmation hearing. An FEC commissioner (he had worked closely with McGahn during their time together at the agency), Petersen had no meaningful trial experience. Under Kennedy’s grilling, it became clear that he also had little knowledge of federal trial rules and courtroom procedures. All of which Petersen might have survived if his cringe-inducing testimony had not become a viral web sensation. Kennedy later snarked to a Louisiana reporter, “Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge.”
When Petersen’s nomination followed Mateer’s and Talley’s down the toilet, Kennedy took a swipe at the White House’s selection process. “Our job on Judiciary is to catch any mistakes that have been made,” he told reporters. “I believe that the president is sending some great nominees, but there are some that have been not so great.”
Now, pretty much no one thinks Kennedy acted purely on worries about the specific nominees. He and Don McGahn had clashed over previous nominations. (Kennedy had expected more of a say in certain picks.) The freshman Senator was, in fact, the first Republican to vote against a Trump judicial nominee when he opposed Gregory Katsas—McGahn’s then-deputy—for the D.C. Circuit Court of Appeals. (Katsas was confirmed.) However troubling Kennedy found Mateer, Talley and Petersen, torpedoing their nominations also sent a message to the White House. “That was a shot across the bow of Don McGahn if I’ve ever seen one,” chuckled the Democratic aide.
Not that there’s anything wrong with that. Whatever ulterior motives are at play with this or that nominee, the end result is that at least a few terrible picks get taken out of the game. That may be as close to a win-win as you get in politics today.
https://www.theatlantic.com/politics/archive/2018/02/when-loyalty-fails/552146/
-
(ACC Mentioned) Staffers Defend Chemical Review Program Under Deep Scrutiny
Feb 2, 2018 | E&E Greenwire
By Corbin Hiar
U.S. EPA's chemical assessment program has powerful critics in Congress, the Trump administration and industry, but that doesn't deter career staffers leading it, they told the National Academies of Sciences, Engineering and Medicine yesterday.
"In Washington, there is a constant cacophony of the beleaguered IRIS program, the dysfunctional IRIS program, all of the things that apparently we can't do well — even though we are the gold standard of risk assessment by all accounts," said EPA staffer Tina Bahadori.
Bahadori has overseen reforms to the Integrated Risk Information System since she took a job as director of EPA's National Center for Environmental Assessment in January 2017.
Bahadori said she and IRIS Director Kristina Thayer, who started at the same time, have set criticism aside and are instead aiming to "identify the issues that are truly in need of being fixed and make sure that, in the shortest amount of time, we address that."
They are now working "with the risk assessment community, with our community of stakeholders, with the people who love us, with the people who hate us, on finding that common ground because we do believe that this work is really really critical and the option of walking away from it does not exist," she told the National Academies committee that EPA last year asked to review IRIS (Greenwire, Nov. 7, 2017).
"There's no other program that can do the work that we do," Bahadori said.
The review comes at a pivotal time for IRIS, which is facing a series of potentially fatal threats, including in ongoing spending talks.
Senate appropriators last year approved a spending bill that would zero out funding for IRIS and shift its assessment responsibilities to the recently revamped Toxic Substances Control Act program at EPA (Greenwire, Nov. 21, 2017).
Congress hasn't enacted the program because it has struggled to pass fiscal 2018 spending bills. But many EPA observers expect the next White House budget request to also target IRIS.
Bahadori and other program supporters told the National Academies committee that eliminating the science-focused group would be a very bad idea. She emphasized IRIS assessments are used by many regulatory programs other than the toxics office.
Bahadori also highlighted reforms she and Thayer have put in place since taking charge. Specifically, they have increased the program's transparency via systemic chemical reviews, modernized its research processes, broken up assessments into different manageable pieces and created more opportunities for public engagement.
Karl Brooks, a former Obama EPA official who is now a professor at the University of Texas, Austin, urged the committee to write a strong defense of IRIS.
That could make it more politically difficult for Congress or the administration to eliminate the program or roll it into the TSCA assessment system, where it could be more vulnerable to industry influence, he argued during the public testimony portion of the two-day workshop.
"I believe it is the National Academies' responsibility, as the nation's science guardian, to protect your professional peers from intensifying industry lobbying, bold political threats, and a senior agency leadership that has shown itself quite willing to sell the agency's trusted and independent legacy to the highest bidders in the regulated community," Brooks said.
The American Chemistry Council, which is providing testimony to the committee today, is asking the National Academies to review and benchmark all of its previous IRIS reform recommendations, which the trade group argues the program has failed to fully implement.
ACC, among its concerns, said IRIS has yet to finish writing procedures for assessment, including transparent and consistent benchmarks.
"It has been nearly five years since the release of the incomplete draft Handbook, yet the IRIS program has not issued a final Handbook or provided any other guidance materials that transparently describe the criteria used for reviewing, evaluating and integrating available evidence to draw conclusions in IRIS assessments," the trade group said.
When the National Academies workshop is over, the committee will deliberate, draft a report and offer it for review later this year.
Jonathan Samet, leader of the IRIS committee and the dean of the Colorado School of Public Health, was careful to say yesterday morning, "The committee has made no conclusions. It would be a mistake for anyone leaving here today to think otherwise."
https://www.eenews.net/greenwire/2018/02/02/stories/1060072761
-
Risk Evaluation, Prioritisation Addressed in US EPA Progress Report
Feb 2, 2018 | Chemical Watch
By Julie A. Miller
The US EPA has published a mandated progress report on evaluation of existing chemicals under the new TSCA that gives some details on the agency's upcoming timetable.
Published on 31 January, the 2018 Annual Report on Risk Evaluation notes that the EPA met statutory requirements to issue regulations on risk evaluation and prioritisation of existing chemicals. It also named the first ten chemicals subject to priority assessment and published scoping documents outlining parameters for those evaluations.
Because it had to issue the scoping documents in just six months, the EPA is working on "formulation documents" that will lay out refinements. The new report, the EPA says, "anticipates publishing and taking comments for 45 days on problem formulation documents in early calendar year 2018."
In the final prioritisation rule, the EPA dropped a "pre-prioritisation" process that would have allowed it to identify a pool of potential candidate substances and gather additional data on them before beginning the formal process. Instead, the agency initiated a consultation on how to identify candidates to be designated high and low priority substances that included an 11 December public meeting.
TSCA requires that the prioritisation process takes between nine and 12 months. The progress report says the agency expects to initiate prioritisation for 40 chemicals – at least 20 low priority and 20 high-priority candidates by the end of this calendar year. It also anticipates formally designating those 40 chemicals by 22 December 2019.
This might indicate a change in policy, as a discussion document released ahead of the December meeting said the EPA anticipated naming more than the 20 required "low priority" substances.
Finally, the report says a draft rule on TSCA fees is "undergoing interagency review". This should be published in "early-mid fiscal year 2018". That appears to indicate a target date in February or March. The final rule is expected in "late fiscal year 2018", which ends on 30 September.
The amended law allows the EPA to establish fees to defray 25 percent of the cost of chemical reviews under TSCA.
The draft fee rule will include "estimates of the resources required to undertake risk evaluations", the report says.
https://chemicalwatch.com/63623/risk-evaluation-prioritisation-addressed-in-us-epa-progress-report
-
Coffee in California May Soon Come With a Spoonful of Cancer Warnings
Feb 2, 2018 | The Washington Post
By Tim Carman
“I’ll have the double espresso with human carcinogen.”
Okay, Starbucks will probably develop more subtle language if a California judge decides that coffee shops, convenience stores and other places that sell hot caffeinated beverages have violated a state law that requires businesses to provide “clear and reasonable warning” about chemicals known to cause cancer.
Should it be handed down this year, the ruling would end a protracted battle between a California nonprofit and dozens of coffee retailers, including Starbucks and other major national chains. At issue is whether coffee in California should come with a cancer warning because, when the drink is brewed with hot water, it naturally produces a chemical known as acrylamide.
[How to hack your Keurig machine and get a better cup of coffee]
Should the coffee retailers lose the case, they face millions of dollars in fines. Should they win, Californians may have to take their chances on a beverage that may or may not cause long-term health problems.
The state of California lists acrylamide, a byproduct of the cooking process known as the Maillard reaction, among the chemicals known to cause cancer or reproductive toxicity. Acrylamide has been on the list since Jan. 1, 1990, although scientists didn’t discover the chemical’s presence in cooked foods until 2002, when the Swedish National Food Administration reported on the subject. Acrylamide also can be found in french fries, potato chips, bread and other grain products.
Eight years after that Swedish report, the Council for Education and Research on Toxics filed a civil complaint against Starbucks, Peet’s Coffee, Seattle Coffee and other companies over what it called violations of the Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65. The law, passed by voters in 1986, requires all companies with 10 or more employees in California to provide clear warnings before exposing customers to any chemicals found on the state’s list of known carcinogens.
“Defendants concealed from Californians and from Plaintiff that their ready-to-drink coffee contained a chemical known to the state to cause cancer,” the complaint alleges. The suit wants Starbucks, Peet’s and the rest to start posting signs, warning consumers about the potential dangers of acrylamide, as well pay fines as large as $2,500 per person for every exposure to the chemical since 2002 at the defendants’ shops. The civil fines could be astronomical.
Several of the defendants have settled, according to published reports. Among them are BP West Coast Products, which operates gas stations and convenience stores; Yum Yum Donuts; and 7-Eleven stores.
[Starbucks took a decade to offer a blonde espresso. And it’s still not up to par.]
But Starbucks and others major chains remain locked in the legal battle. Starbucks, as the lead defendant, has declined to comment, referring reporters to the National Coffee Association. The group’s president and chief executive, William “Bill” Murray, issued a statement:
“Coffee has been shown, over and over again, to be a healthy beverage. The U.S. Government’s own Dietary Guidelines state that coffee can be part of a healthy lifestyle. This lawsuit simply confuses consumers, and has the potential to make a mockery of [Proposition] 65 cancer warning at a time when the public needs clear and accurate information about health.”
A customer sips coffee in a London Starbucks. (Andrew Winning/Reuters)Passed by voters to curb the industrial pollution of the state’s drinking water, Proposition 65 has been a success at protecting Californians from potential toxins — and a boon to attorneys, private citizens and others who can sue on behalf of the state and claim part of the civil penalties. Some businesses, according to numerous reports, say Prop 65 — with its list of hundreds of suspected carcinogens — has provided ammunition for lawyers to shake down companies for settlements.
In fact, according to USA Today, the law firm representing CERT in the coffee case also represented the nonprofit in a similar complaint with potato chip manufacturers. Like hot coffee extracted from beans, chips made from fried potatoes contain acrylamide. In 2008, the Metzger Law Group, according to USA Today, settled with chip producers, which agreed to “pay $3 million and remove acrylamide from their product.”
[How to brew better coffee at home (and save money) in 5 easy steps]
Attorneys for Metzger did not immediately return a pair of phone calls from The Washington Post.
In the complaint against coffee shops, Metzger and CERT argue that even a 12-ounce serving of hot coffee “contains approximately 10 times more acrylamide than the No Significant Risk Level (“NSRL”) for acrylamide established by California Office of Environmental Health Hazard Assessment.”
To date, the defendants have argued in court that coffee should be included under Prop 65’s exemption for chemicals that occur naturally during the cooking process. They’ve also argued for the many health benefits of coffee, such as a reduced risk of liver disease and Type 2 diabetes, not to mention a lowered risk of Alzheimer’s disease and prostate cancer. (Then again, studies have linked coffee to increased risks of heart attacks and hypertension.)
The scientific evidence linking acrylamide to cancer in humans is scant. According to the American Cancer Society, studies have found that acrylamide increases the risk of cancer in rats and mice when the chemical is placed in the animals’ drinking water at doses “1,000 to 10,000 times higher than the levels people might be exposed to in foods.” The society doesn’t know yet how the results would translate to humans, but it suggests limiting your intake of acrylamide.
As far as studies with people, the American Cancer Society notes, “Most of the studies done so far have not found an increased risk of cancer in humans. For some types of cancer, such as kidney, endometrial and ovarian cancer, the results have been mixed, but there are currently no cancer types for which there is clearly an increased risk related to acrylamide intake.”
The Food and Drug Administration notes that acrylamide is a “human health concern,” but it stops short of recommending that people stop eating foods that contain the chemical. The agency is continuing to study it.
Both sides in the California coffee standoff will sit down for a private mediation later this month, according to a CNN story. But if they can’t come to an agreement, a decision will fall to the judge in the case. Judge Elihu M. Berle could be the person who decides whether a cup of coffee in California comes with a shot of cancer warnings.
https://www.washingtonpost.com/news/food/wp/2018/02/02/coffee-in-california-may-soon-come-with-a-spoonful-of-cancer-warnings/?utm_term=.2ddc9598b21a
-
Legislative 'Reform' to Narrow States' Power — Chatterjee
Feb 2, 2018 | E&E Energywire
By Saqib Rahim and Nick Sobczyk
A leaked White House memo suggests the Trump administration is exploring ways to rein in a key state power over natural gas pipelines.
The document, reported by The Washington Post last week, is a "discussion draft" of ideas to change the regulatory process for infrastructure projects. One of the ideas is to change the Clean Water Act so states have less time to decide on the water permits for natural gas projects that want to cross their territory. Currently, Section 401 of the act gives states up to a year.
A White House official said the document is outdated and "should not at all be considered as administration policy."
But pipeline proponents, frustrated by what they see as unfair delay and denials in states such as New York, have been murmuring about whether to push for a legislative fix of this sort. And yesterday, at a conference in New York City, Neil Chatterjee, a member of the Federal Energy Regulatory Commission, suggested the idea's still kicking around.
"The administration is looking potentially at permitting reform through the infrastructure process. If that were to succeed legislatively, I believe they are looking at some statutory changes that would address this issue," Chatterjee said, speaking at the S&P Global Market Intelligence Power and Gas M&A Symposium. "But for the time being, and in the absence of that statutory change occurring, I think the venue for this will be in the courts."
The latest administration push for dramatic regulatory changes is on the table as the White House prepares its push for an infrastructure bill this year. The document released by the Postsuggests the administration wants the bill to not just build new projects, but also to pare down a regulatory apparatus it considers burdensome, inefficient and slow (Greenwire, Jan. 29).
States' authority under Section 401 has become a target, thanks to states like New York.
Currently, FERC is the lead agency on all interstate natural gas projects. But states enjoy a critical role thanks to Section 401. That section gives states time and authority to decide if the proposed pipeline will meet state water laws — and an effective veto on the project.
In the last two years, New York has used it to deny three high-profile gas pipelines. All three had already been approved by FERC but were stopped by New York's rejection. All three cases ended up in court.
But while those legal issues are getting untangled, the power of Section 401 is popping up in pipeline cases elsewhere, from West Virginia to Virginia to North Carolina. Environmentalists have rallied around the instrument as a symbol of state sovereignty on matters of energy and climate.
In New Jersey, they're hoping to pressure Gov. Phil Murphy's administration to use the Section 401 process to block the PennEast pipeline, which FERC advanced last month. "What we're going to do is teach FERC a lesson," Jeff Tittel, senior chapter director of the New Jersey Sierra Club, said at a recent rally. "We're going to fight them on the water, we're going to fight them on the land, we're going to fight them on the air."
According to the leaked "discussion draft," the Trump administration looked at two main ways to restrain states' authority under Section 401.
First, it would modify the Clean Water Act to give states 90 days to decide if a pipeline company's application is complete. The rationale is to keep states from repeatedly extending the clock by saying the application is incomplete and has to be resubmitted.
If the state can't decide on that within 90 days, the U.S. EPA administrator could decide instead.
Second, once the application is deemed complete, the state would have three months to act on the application. Right now, states get a year.
Environmentalists are already fighting against these provisions. Raul Garcia, senior legislative counsel at Earthjustice, said Section 401 gives states a key spot in the permitting process for pipelines and hydroelectric projects, and scaling it back would be akin to limiting states' rights.
"Taking that away is sort of a reversion of political position because you hear Republicans all the time crying about states' rights and how we need to protect states' rights," Garcia said in a call with reporters this week. "Well, one of the impacts of eliminating Section 401 of the Clean Water Act is that you're actually taking away that protection — that ability that the state would have in order to say that a project is not good in that state."
https://www.eenews.net/energywire/2018/02/02/stories/1060072719
-
Cities Pepper Courts with Climate Cases. Oil is the Target
Feb 2, 2018 | E&E Climatewire
By Anne C. Mulkern
Lawsuits against oil companies for damages connected to climate change are mounting. So far, eight cities and counties in California and New York City have filed suit. Two Los Angeles city councilmen want that city to do the same.
The growing number of cases is seen by some legal experts as a strategy of multiplicity. Lawyers representing municipalities are trying separately to persuade numerous courts that their clients' shorelines are being eroded by rising seas and that the oil industry is to blame.
"This is sort of very cutting-edge, relatively high-risk litigation," said Daniel Farber, a professor of law at the University of California, Berkeley. Winning one of the cases would help the others, he said, and there's a benefit to "taking a lot of different shots in a lot of different courts."
Officials in Richmond, Calif., in the San Francisco Bay Area, filed the latest case last month. The city is suing 29 oil companies and industry trade groups, including Chevron Corp., Exxon Mobil Corp., BP PLC, Royal Dutch Shell PLC, Citgo Petroleum Corp., ConocoPhillips Co. and the American Petroleum Institute.
Other municipalities that have leveled lawsuits include the California cities of San Francisco, Oakland, Imperial Beach and Santa Cruz. Three counties in the state are pursuing their own cases: San Mateo County, Marin County and Santa Cruz County. New York City sued last month.
"More and more communities are looking to get their costs of dealing with these incredibly expensive injuries from climate change paid for by the parties that are responsible for it," said Vic Sher, a partner at Sher Edling LLP. That firm represents six of the suing municipalities.
There are signs that the legal movement could expand. Los Angeles City Councilmen Paul Koretz and Mike Bonin filed a motion in January asking City Attorney Mike Feuer to provide options for suing the oil and gas industry.
Linda Kelly, general counsel of the National Association of Manufacturers, responded on behalf of the oil companies. She's also part of the Manufacturers' Accountability Project, a group targeting trial lawyers, activists and others who have "sought to undermine and weaken manufacturers."
Kelly said that the companies "will vigorously defend themselves, with the full support of the Manufacturers' Accountability Project. These cases, no matter how many are filed, have no legal basis. The plaintiffs do not have standing in most cases because the alleged injuries cannot be traced to any one source."
Oil companies hope to move the cases to federal court. Oral arguments will be heard on that motion this month in the cases involving San Francisco and Oakland.
"These cases implicate longstanding federal government policies, concerning matters of uniquely national importance, including the Nation's supply of energy and the global environment," oil company attorneys said in written arguments.
The cities say in court documents that they're not trying to limit the companies' emissions. Instead, they want an "abatement fund" to shift adaptation costs from taxpayers to the fossil fuel companies.
The cases allege that the oil companies knew of the dangers posed by climate change but still "engaged in a coordinated, multi-front effort to conceal and deny their own knowledge of those threats, discredit the growing body of publicly available scientific evidence, and persistently create doubt," according to the Richmond suit.
At the same time, the companies profited from greater consumption of their products, "which has in turn caused an enormous, foreseeable, and avoidable increase in global greenhouse gas pollution."
The coastal cities are seeking money to deal with the damages caused by sea-level rise and other climate impacts. Santa Cruz and Santa Cruz County claim in their cases that greenhouse gas emissions contribute to extreme heat, extreme storms, droughts, wildfires and more. The New York case seeks billions of dollars in damages to cover climate resilience measures.State Supreme Court
Whether the California cases remain in state courts or get moved to the federal bench, they'll likely face a common hearing at some point. Each system has a mechanism for merging some proceedings before the trial stage.
Farber with UC Berkeley noted that if the cases stay in California, one or more would likely end up at the state Supreme Court.
"It's such a big deal, I think it's likely the court would be willing to hear it when it gets up there," he said.
Sher said he didn't consider using a class-action lawsuit. That type of suit would use one case as an example, with other members of the class sharing any damages that the group received.
"What the fossil fuel industry did wrong is common to all of the lawsuits," Sher said, while "each community has been affected in an individual way." He added that "ultimately, each community will have to prove up the injuries that it has suffered."
Meanwhile, Exxon Mobil Corp. has signaled it might countersue. It filed a petition in a district court in Tarrant County, Texas, seeking authorization to question numerous municipal officials and to obtain documents "pertaining to potential claims of abuse of process, civil conspiracy, and violations of ExxonMobil's constitutional rights."
Sher said that was "spurious action intended to intimidate public officials, and we'll deal with it in court."
Kelly, of the manufacturing trade group, said that the lawyers representing the cities deserve more scrutiny.
"The same few law firms have shopped around a template lawsuit to California municipalities and beyond, no doubt with the promise of a big payout," she said. "What hasn't been explained is that there are potential liabilities that could fall on the taxpayer should a countersuit be filed by the defendants."
A recent California appellate court case on lead paint could serve as a kind of precursor in the suits against oil companies, said Cara Horowitz, co-executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. That case said three companies would have to reimburse the state for the cost of stripping lead paint from inside thousands of houses in 10 cities and counties.
The cities' cases against oil companies could have another impact, Horowitz said. The fact that there are now so many suits — some involving iconic cities such as New York and San Francisco — might make it more likely "that the public begins to understand the dangers of fossil fuels."
"These plaintiffs are suing because they want to win" money, Horowitz said. "It wouldn't be crazy to have a secondary aim, which is to socialize or normalize the idea that these fossil fuel products are actually dangerous to society."
https://www.eenews.net/climatewire/2018/02/02/stories/1060072723
-
Do Big Finds Point to a Rebound? Not in the Gulf
Feb 2, 2018 | E&E Energywire
By Nathanial Gronewold
Major discoveries in the Gulf of Mexico and beyond hint at a revival in offshore drilling, but statistics and energy experts say otherwise. This week, both Chevron Corp. and Royal Dutch Shell PLC touted new finds. Chevron announced a "major oil discovery" close to its Blind Faith platform, in the Mississippi Canyon in the eastern Gulf.
Meanwhile, Shell announced a new find in ultra-deep water near its Perdido spar, a site off the Texas coast that is the most isolated facility in the U.S. Gulf. Upstream Director Andy Brown said the find "shows how, through exploration, we are sustaining a strong pipeline of discoveries and future projects to sustain this deepwater growth."
Tullow Oil also recently said it's struck a massive field in Mexico's portion of the shallow-water Gulf.
Yet offshore drilling remains moribund in the U.S. Gulf compared with previous years, and it's fairly anemic overseas, as well. Activity is mainly growing in the Asia-Pacific region and is level or falling elsewhere, though there are some signs of a possible resurgence in the North Sea.
Capital spending on major offshore exploration also has yet to recover from where it stood before the 2014 oil price crash. Nathalia Jewell, an oil services manager at McKinsey Energy Insights, says it's premature to call these latest announcements indicative of a revival in ocean drilling activity.
"It's too early to see a rebound in offshore drilling, as prices have just recently been increasing," said Jewell. "Companies will want more certainty that oil prices will remain strong before approving and committing to a multibillion-dollar project offshore."
Baker Hughes Inc., a GE company, will report the latest national and international active rig count this morning, but there's little hint that the numbers will show a surge of activity in the Gulf. Last week, the company said two rigs had left the Gulf. Anticipating the imminent end to a Gulf drilling contract, Maersk Drilling announced it would lay off 84 workers from the Maersk Viking drillship, according to Offshore Energy Today.
BP PLC announced two major new finds in the North Sea this week. Shell and Chevron are also partners on that effort. As with the Gulf discoveries, BP didn't speculate on the size of the resource found, saying the wells are in appraisal.
Shell also said it had made a final investment decision to move forward with expanding output at the Penguins North Sea field. But as with the Gulf, such announcements do not correlate with major revived interest in offshore exploration. The United Kingdom's portion of the North Sea saw a sharp downturn in drilling during the oil price downturn. Statoil ASA has kept up activity in Norway's share of the North Sea, but the rig count there is still relatively low.Shale still blowing away offshore
Jewell said U.S. shale oil is deterring companies from spending more capital expenditures (capex) on offshore exploration.
The offshore sector has struggled to revive due to "a shift in competition for marginal capex dollars, primarily due to the resilience of North American shale oil production, which has exceeded expectations thanks to improved break-evens and capital availability, adding more barrels to the market," Jewell explained.
"Although capex is starting from an already low base, the latest announcements and analyst consensus suggest that global exploration and development capex will grow by 4-6 percent in 2018," Jewell said. "However, most of this growth is expected to happen onshore."
Offshore energy managers have an even bigger problem to contend with: offshore decommissioning expenses.
In the U.K. North Sea alone, McKinsey sees a long list of pending decommissioning work, including about 2,500 wells, 200 platforms and thousands of miles of pipelines over the next five years. The total cost could exceed $5 billion.
If rig numbers do rise strongly in the coming months, it's likely to happen in Mexico's portion of the Gulf.
Mexico's energy regulators this week announced a successful auction of drilling rights in its deepwater prospects. Companies from an array of countries bid on blocks, with Shell securing the most (Energywire, Feb. 1).
https://www.eenews.net/energywire/2018/02/02/stories/1060072695
-
D.C. Circuit Rejects FERC Request to Retain Pipeline Permits
Feb 2, 2018 | Inside EPA
An appellate court is rejecting federal energy regulators' request to reconsider a landmark ruling vacating key permits for a major natural gas pipeline network in the Southeast because it found the regulators failed to analyze the downstream greenhouse gas effects of the gas when it is burned at power plants.
The court's Jan. 31 decision could require project developers to stop work on the pipeline network if the court's ruling formally takes effect in the coming days before the Federal Energy Regulatory Commission (FERC) finalizes a supplemental review of the GHG effects.
Because FERC did not challenge the merits of the ruling and instead sought only to reverse the remedy of vacating the permits, the U.S. Court of Appeals for the District of Columbia Circuit's August holding in Sierra Club v. FERC will continue to apply in any future challenges to environmental reviews of energy-related infrastructure.
Since the ruling, environmentalists have frequently cited it in their long-running campaign to force agencies to conduct more rigorous climate and GHG reviews of such projects under the National Environmental Policy Act (NEPA).
In addition, environmentalists, academics and some Democratic lawmakers are criticizing FERC's supplemental review as flawed, in part because the commission did not use the social cost of carbon (SCC) metric to monetize the project's climate-related damages.
Those comments could signal a fresh round of litigation once the commission finalizes its supplemental review.
In the instant case, the D.C. Circuit vacated FERC's “certificate orders” for the three-state Sabal Trail pipeline network after finding that the commission did not analyze the downstream GHG impacts when the gas would be burned at Florida power plants.
In response, FERC drafted a supplemental environmental review on the GHG issue, on which it accepted comment though Nov. 20.
Despite moving to comply with the ruling by doing the analysis, the commission still asked the D.C. Circuit to reconsider its permit vacatur, arguing that any stop in pipeline construction could lead to a gas shortage for the state's power plants.
But the D.C. Circuit in a pair of Jan. 31 orders declined to rehear the 2-1 panel ruling and also declined to reconsider the case en banc.
Under the court's procedures, its mandate implementing the ruling would be issued Feb. 7, unless FERC launches a Supreme Court appeal.
It is not clear when FERC plans to finalize its supplemental review of the project's downstream GHGs.
However, a Jan. 31 analysis by the consulting group ClearView Energy Partners notes that current White House guidelines “appear to require” FERC to wait 30 days before issuing a new permit for the project once it finalizes the supplemental NEPA review.
“We therefore expect that it is possible that the project could need to temporarily wind down construction operations until new certificates can be issued,” the group says.
https://insideepa.com/daily-feed/dc-circuit-rejects-ferc-request-retain-pipeline-permits
-
Senate Bill Would Require Two Crew Members on Trains Hauling Cargo
Feb 2, 2018 | Transportation Today
By Aaron Martin
Freight trains carrying cargo would be required to have at least two crew members on board in an effort to improve safety and emergency response in the event of derailments under a bill introduced in the Senate on Wednesday.
U.S. Sen. Heidi Heitkamp (D-ND) evoked the collision of two trains carrying crude oil in 2013 near Casselton, North Dakota, when she announced the bill, the Safe Freight Act. The National Transportation Safety Board (NTSB) attributed the collision to a faulty axle last February.
“When a disaster like the Casselton derailment sends shockwaves through our communities, we must do everything we can to prevent accidents and improve our ability to respond in the future,” Heitkamp said. “After the Casselton derailment, it was clear that having two crewmembers on board the train made all the difference to prevent the fire from escalating and threatening those living nearby. My legislation is a commonsense way to make our communities strong and safe while supporting an industry that is vital to North Dakota jobs and prosperity.”
Following the collision, Heitkamp launched the Strong and Safe Communities Initiative to address challenges arising from North Dakota’s energy boom. The Safe Freight Act is an outgrowth of the initiative.
Local first responders, SMART Transportation and the Brotherhood of Locomotive Engineers and Trainmen have all backed the bill.
“As we saw a few years ago in Heimdal, accidents involving freight trains carrying hazardous materials can pose real danger to the public,” Janelle Pepple, the 911 coordinator in Wells County, North Dakota, said. “We were fortunate no one was hurt in Heimdal, but it’s critical that steps are taken to make safety the priority. Senator Heitkamp’s legislation is a common sense way to increase safety for those living close to railways and prevent the huge disruptions an accident can cause.”
https://transportationtodaynews.com/news/7951-senate-bill-require-two-crew-members-trains-hauling-cargo/
-
Senators Renew Push for 2-Person Oil Trains
Feb 2, 2018 | E&E Energywire
By Blake Sobczak
Sen. Heidi Heitkamp (D-N.D.) introduced a bill this week to require two-person crews on freight trains hauling crude oil and other hazardous materials.
The "Safe Freight Act" follows up on past legislative efforts in the House to set minimum staffing levels on certain high-hazard trains.
Heitkamp harkened back to a nearly disastrous December 2013 oil train derailment and fire near Casselton, N.D., in a statement yesterday. In that episode, a student engineer — one of two BNSF Railway Co. employees on the crashed train — put himself in harm's way to disconnect oil-filled tank cars and help prevent additional explosions (Energywire, March 15, 2016).
"It was clear that having two crewmembers on board the train made all the difference to prevent the fire from escalating and threatening those living nearby," Heitkamp said, calling her new bill a "commonsense way" to make communities safer while still supporting the energy industry. More than 130,000 barrels of crude oil left North Dakota each day by train in November 2017 en route to coastal refineries, according to the most recent state data available.
The deadliest oil train crash in history, which killed 47 people in Lac-Mégantic, Quebec, five years ago, involved a train with only one engineer assigned to it. The rail worker left the train parked overnight on an incline, and a string of tank cars ultimately broke free and hurtled toward Lac-Mégantic before derailing and exploding in the center of town. Canadian regulators have since required all hazmat trains to have at least two workers on board.
The Department of Transportation is considering its own staffing rule for trains carrying flammable liquids, set to be finalized by August 2018. But an initial proposal to set a two-person minimum in 2016 drew pushback from rail industry lobbyists, who claimed that DOT lacked evidence to conclude that having two workers on board really boosts safety.
That proposed regulation stalled amid the presidential transition, with a July 15, 2016, public hearing marking the last major step.
"We all watched with a great deal of concern what happened in Lac-Mégantic, and wondered how could that happen, realizing it was a one-person crew," Heitkamp said at that hearing.
Early last year, Rep. Don Young (R-Alaska) introduced legislation to require two-person crews on all freight trains. The bill gained 75 co-sponsors but failed to advance out of the House.
Heitkamp's latest bill so far has five co-sponsors in the Senate: Tammy Baldwin (D-Wis.), Sherrod Brown (D-Ohio), Angus King (I-Maine.), Ed Markey (D-Mass.) and Elizabeth Warren (D-Mass.).
The legislation has also drawn support from rail worker unions, including the SMART Transportation Division. Charles Weick, chairman of the Brotherhood of Locomotive Engineers and Trainmen's North Dakota State Legislative Board, praised Heitkamp's bill in a statement.
"When things go wrong, it can take more than one set of hands to quickly deal with a problem to prevent disaster," he said.
https://www.eenews.net/energywire/2018/02/02/stories/1060072711
-
Critics on New Leasing Policy: 'BLM is Inviting Lawsuits'
Feb 2, 2018 | E&E Energywire
By Ellen M. Gilmer
Environmentalists are eyeing the courtroom after the Trump administration this week unveiled new policies for oil and gas leasing on public lands.
The Interior Department's updated Bureau of Land Management leasing procedures usher in a wave of changes celebrated by the oil and gas industry and panned by environmentalists as an affront to public lands laws.
"This step is likely to backfire on the Trump administration," Earthjustice attorney Mike Freeman said. "It almost ensures that BLM lease sales are going to get struck down for failure to comply with the law.
"BLM is inviting lawsuits by taking this step," he added.
The agency's new instruction memorandum reverses several reforms instituted by the Obama administration in 2010 (E&E News PM, Feb. 1). It nixes the use of master leasing plans, championed by the Obama administration to increase input for leasing in sensitive areas; slashes the period of time opponents can raise objections to proposals; and scraps a rotating auction schedule designed to give BLM offices more time for review.
Industry had long complained that those Obama-era measures created duplicative layers of environmental review to slow down development.
The memo also supports the use of "determinations of NEPA adequacy" (DNAs) to comply with the National Environmental Policy Act when BLM officers think existing documents include sufficient analysis for new leasing proposals. The Obama administration occasionally used DNAs but favored environmental assessments for most leasing proposals.
Critics of the new policies say the changes leave Interior legally vulnerable.
"The new IM sharply constrains public involvement, hamstrings field offices from providing thorough reviews and greenlights leasing whether or not it has been properly analyzed," Western Environmental Law Center attorney Laura King said. "In short, the IM makes a farce of BLM's mandate to consider multiple uses beyond extraction. When BLM implements the new IM, it will be legally vulnerable."
Interior's policy clarifies that BLM offices do not have to resolve lease protests before conducting sales and specifies that the agency does not need to halt leasing when it decides to update planning documents for an area.
King pointed to the latter provision as a particularly problematic feature of the agency's new approach, arguing that "stale" planning documents are not adequate legal support for new leasing.
The agency has faced dozens of lawsuits over the years challenging the adequacy of environmental reviews for leasing. The Obama administration issued its now-defunct leasing reforms partially in response to a controversy over George W. Bush-era leases in Utah. Environmental groups said the 77 leases hadn't been adequately analyzed, and a federal court in 2009 blocked the planned sale. Ken Salazar, Obama's first Interior secretary, canceled the leases a month later.
Former Interior official David Hayes, who helped craft the Obama-era leasing reforms, said the Trump administration's new approach will land the department back in court. He noted various "red flags" from the policies, including limitations on public input and the ability for BLM officials to skip site visits and issue DNAs.
"Legal vulnerabilities, all," he said in an email. "Likely to lead to the type of results-oriented decision-making that led to the many poor oil and gas siting decisions made in the Bush administration ... and the litigation around those decisions."
Critics raised similar concerns last year when Interior streamlined NEPA reviews for infrastructure projects (Energywire, Sept. 8, 2017).Fights on the horizon
Already, the wheels are turning in the minds of environmental lawyers opposed to the reforms.
Legal pushback will mostly be piecemeal: As the agency implements the memo, environmental lawyers will challenge individual actions they see as violations of NEPA or various land management laws.
That's no surprise to Kathleen Sgamma, head of the industry group Western Energy Alliance.
"The only legal vulnerability is that environmental groups are suing anything that allows responsible oil and natural gas leasing and development to move forward, but that's regardless of this policy change," she said.
Industry lawyers say Interior's recent reforms actually bring the agency into compliance with federal laws.
"We interpret the instruction memorandum as a recognition that certain aspects of the existing leasing policy did violate the Mineral Leasing Act, and we appreciate the modification BLM has made to bring their leasing program into compliance with the law," said BakerHostetler attorney Mark Barron.
Barron represented the Western Energy Alliance in a legal issue directly addressed by the new leasing policies. The group argued in a 2016 lawsuit that BLM routinely violated the Mineral Leasing Act by failing to have lease sales every quarter in states with lands available for leasing. Yesterday, it moved to voluntarily dismiss its main claims in light of the new instruction memorandum.
While the most conventional legal challenges to the Trump administration's policies will focus on actual implementation efforts, groups could craft a more creative challenge to the memo itself. For now, they're just thinking about it.
"We're reviewing it carefully and considering all our options at this point," Freeman said.
Direct challenges to agency procedures are tricky because IMs are generally considered nonbinding internal policies. The memo includes a standard disclaimer that leasing carried out under the policies must comply with all relevant laws, including NEPA.
"It's hard to challenge an IM as it's guidance that BLM is issuing to its staff," Sgamma said. "They would have to show that BLM is not interpreting the Mineral Leasing Act or another law correctly with this guidance."
Environmental lawyers are aware of those potential barriers to a direct challenge of Interior's new approach.
"Speaking generally, there are some things that in terms of internal management of their procedures that an agency can do by these sorts of informal memoranda and guidance documents," Center for Biological Diversity senior attorney Michael Saul said. "There are other actions which rise to the level of constituting a rule under the Administrative Procedure Act."
Saul couldn't say whether CBD would end up challenging the memo directly but noted that the group has major concerns about it.
"This seems to be a memorandum that has some pretty far-reaching effects," he said. "It goes beyond simply eliminating the 2010 reforms but really creates a new regime that purports to prioritize oil and gas leasing over everything else."
"I think there's substantial questions about the memo itself," he added, "but at this point, we're just taking a close look at that."
https://www.eenews.net/energywire/2018/02/02/stories/1060072713
-
Pruitt: Goal is to Roll EPA Back From 'Weaponized' Past
Feb 2, 2018 | The Hill - E2 Wire
By Miranda Green
While environmentalists lash out at the Trump administration over blocked Obama-era regulations, Environmental Protection Agency (EPA) Administrator Scott Pruitt says they should first look at Congress.
On the New York Time's podcast the "The Daily" on Friday, Pruitt said his main motive in taking the job at the agency was to fix it by stripping actions taken by previous administrations — actions he believes only Congress has the authority to take. If that means Congress is left filling in the blanks, he suggested that's not his concern.
"We are housed in the Executive Branch, and your job is to enforce the law — the only authority I have is from Congress — largely what has happened with the past administration, they made it up," said Pruitt. "The fact that Congress is dysfunctional and is not updating the Clean Air Act or the Clean Water Act or all of these statutes that we administer, the fact that Congress isn’t doing that doesn’t mean EPA can say, 'We're going to do it in your place.' "
Pruitt said the old EPA frequently picked sides and his goal in heading the agency, which he's lead for almost a year, is to instead strip it back to its basic function of law enforcement, which he calls "EPA originalism."
"The agency took a perspective for a number of years that's prohibition. Though we’ve been blessed with natural resources that help us literally feed the world and power the world, that we should not develop those natural resources that we should put fences up and we should prohibit that," Pruitt said. "And so in some respects ... the rulemaking that was being deployed by the agency was weaponized in the sense that it was picking winners and losers."
That weaponization, he said, was the authority the EPA took to determine what types of energy should be supported, such as coal versus solar.
"Weaponized in the sense of saying we are going to favor certain outcomes in the market with respect to energy and the environment — that’s not the role of a regulator," he said.
With regards to climate change, Pruitt reinforced his thoughts that the climate is changing, but chastised scientists who have predicted global temperatures in the future.
"There are things we know and things we don’t know. I think it’s pretty arrogant for people in 2018 to say, 'We know what the ideal surface temperature should be in the year 2100,'" said Pruitt.
"I think the debate about the impact of Co2 is important for us to wrestle with as a country. There are some who believe it causes an existential threat and it’s tomorrow. There are some who thought it was more important than ISIS. I can tell you that if that issue is more important than ISIS, I want to know about it."
http://thehill.com/policy/energy-environment/371987-pruitt-the-epa-was-picking-winners-and-losers
-
Emails: Pruitt Monitored Changes to EPA Webpages on Climate
Feb 2, 2018 | AP (In The New York Times)
Newly released emails show Environmental Protection Agency Administrator Scott Pruitt personally monitored efforts last year to excise much of the information about climate change from the agency's website, especially President Obama's signature effort to reduce planet-warming carbon emissions from coal-fired power plants.
The internal EPA messages from April 2017 were released earlier this week following a Freedom of Information Act request filed by the advocacy group Environmental Defense Fund. They show then-newly arrived political appointees in the agency's press office directing career staffers to make a list of changes to epa.gov. The emails show Pruitt wanted the updates to appear as soon as possible and had specific changes he wanted made.
John Konkus, a former Republican campaign operative hired as EPA's deputy associate administrator for Public Affairs, emailed staffers on the evening of Saturday, April 1.
"We need to start building an updated page for the clean power plan ASAP with the goal of having it go live sometime on Monday," Konkus wrote. "Is there any way we can get a little time put in on this project over the weekend so that we're off on the right foot on Monday morning?"
Four days before the email, President Donald Trump signed an executive order on energy independence that included a directive to start the process of rescinding the Clean Power Plan and other environmental regulations that "potentially burden" the domestic production of fossil fuels.
Konkus' message triggered a flurry of emails over the following days about extensive changes to the agency's web pages, including some edits ordered directly by Pruitt. Among the changes were stripping away data about climate change and modifying search results for "Clean Power Plan" to feature a page touting Trump's executive order featuring a photo of the president posing with smiling coal miners, Pruitt and other members of his cabinet.
EPA began its formal repeal of the Clean Power Plan in October. President Trump also announced last summer he intends to withdraw from the Paris climate accord signed by Obama in 2015, potentially making the United States the only nation in the world that is no longer committed to reducing carbon emissions under the landmark international agreement.
Pruitt previously served as Oklahoma's attorney general, a post where he repeatedly sued EPA to block stricter environmental regulations while reaping political donations from the state's powerful oil and gas industry. Like Trump, Pruitt has publicly questioned the veracity of evidence complied by climate scientists, including those in his own agency, that global warming is overwhelmingly caused by man-made carbon emissions from burning fossil fuels.
"How close are we to launching this on the website?" emailed Lincoln Ferguson, an EPA senior adviser for public affairs who previously served as Pruitt's spokesman in Oklahoma, on April 5. "The Administrator would like it to go up ASAP. He also has several other changes that need to take place."
"You can tell him we have already mocked it up, and are just finishing up. Should happen this week," replied J.P. Freire, then EPA's associate administrator for public affairs and a former GOP congressional staffer.
"Just asking because he is asking ...," Ferguson emailed back.
Versions of the edited pages are still available on an archived "snapshot" of EPA's website as it appeared prior to Trump's inauguration, but those pages are no longer updated and many links to the underlying documents and data are now broken, leading to error messages.
EPA spokesman Jahan Wilcox said Thursday that staff is constantly updating the agency's website to reflect new initiatives.
"Of course the site will be reflective of the current administration's priorities," Wilcox said. "With that said, all the content from the previous administration is still easily accessible and publicly available through the banner across the top of our website."
The changes made to epa.gov last year sparked widespread concern from scientists, environmentalists and others worried a key public repository of information and data about climate change was being lost. A coalition of scientific and academic groups rushed to make copies of the government webpages before they disappeared.
The Environmental Data & Governance Initiative, which tracks changes to thousands of government websites under the Trump administration, says over 200 webpages providing climate information have been omitted from epa.gov over the last year. Other pages, including the agency's homepage, have been substantially altered to removing mentions of climate and climate change.
"Obscuring information thwarts meaningful public participation in EPA's work to protect Americans' health and safety," said Ben Levitan, a lawyer with the Environmental Defense Fund. "It reinforces serious concerns that Pruitt has predetermined that he will repeal the Clean Power Plan, and that the current rulemaking process is a sham."
https://www.nytimes.com/aponline/2018/02/02/us/politics/ap-us-epa-pruitt-climate-change.html
-
Greens File Lawsuit Seeking Agency FOIA Documents
Feb 2, 2018 | E&E Greenwire
By Amanda Reilly
Environmental groups have filed a Freedom of Information Act lawsuit over U.S. EPA's delayed responses to FOIA document requests.
Represented by Earthjustice, the Sierra Club alleges that EPA has employed "aggressive" tactics in order to avoid responding to FOIA requests, including through denying requests for fee waivers.
The lawsuit in the U.S. District Court for the Northern District of California seeks records related to any changes in agency FOIA policy under EPA Administrator Scott Pruitt.
"It's time to find out why the public is not getting the information it is supposed to get by law," said Michael Brune, executive director of the Sierra Club, in a statement. "There has never been so much secrecy at the Environmental Protection Agency."
Earthjustice filed a FOIA request in June and another in October on behalf of the Sierra Club for agency policies and guidelines on handling, processing and disposing of record requests. The complaint filed yesterday says that the agency has not yet responded.
Along with imposing fees, greens say they are worried that EPA is running FOIA responses by political appointees and inaccurately claiming that requests "do not reasonably describe" records that are being sought.
"While all appearances suggest that the Pruitt EPA is using more aggressive tactics to ward off FOIA requests, to date the agency has not made available any records concerning these policy changes," said Thomas Cmar, an Earthjustice attorney.
EPA says it has been working to clear the backlog of FOIA requests that existed at the start of 2017, prior to the Trump administration's taking office. The agency had 652 open FOIA requests as of October 2017 that were submitted in earlier years, according to agency spokeswoman Liz Bowman.
"We are committed to transparency," Bowman said. "EPA staff are working to clear the backlog of FOIAs that built up from the previous administration, all while continuing to respond to the large volume of incoming requests."
https://www.eenews.net/greenwire/2018/02/02/stories/1060072747
Industry and Association News
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no clips to report at this time.
Transportation and Infrastructure News
Environment News
Add recipients
Suggested