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ACC PM 10/07/18

Industry and Association News

(ACC Mentioned) 5 Polluting Industries That Won Big from Scott Pruitt’s Tenure at the EPA
Jul 10, 2018 | Vox
By Umair Irfan

Scott Pruitt’s sudden exit as administrator of the US Environmental Protection Agency on Thursday was the culmination of a stunning list of scandals after leaks and reports revealed that he’d turned his office into a virtual ethical Superfund site.

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Chemical Management News

(ACC Mentioned) The EPA Really Doesn’t Want You To Know How Cancerous Formaldehyde Is
Jul 10, 2018 | Care2.com
By Kevin Mathews

Remember a couple months ago when Americans learned that the government had buried a study with some alarming findings about chemicals in our drinking water?
To Rebuild Trust After Pruitt, EPA Should Ban These Toxic Chemicals
Jul 10, 2018 | Environmental Working Group
By Scott Faber

Thanks to President Donald Trump, Americans’ confidence in the Environmental Protection Agency has never been lower.
Residents Urge Court to Ignore DOJ Argument Over PFAS Monitoring
Jul 10, 2018 | Inside EPA

Residents exposed to perfluorinated chemicals from military sites in Pennsylvania are urging an appellate court to reject Justice Department (DOJ) arguments in a recent letter that a federal pilot biomonitoring study moots their arguments in a pending case seeking medical monitoring paid for by the Navy.
Industry, NGOs Welcome Canadian Government Cepa Response
Jul 10, 2018 | Chemical Watch
By Kelly Franklin

Industry groups and NGOs have welcomed the Canadian government's commitment to overhauling the country's key chemical management law, despite differing views on how quickly the reforms should be implemented.
Classify All Titanium Dioxide Forms as Suspected Carcinogens, Member States Urged
Jul 10, 2018 | Chemical Watch
By Luke Buxton

A group of NGOs has called on EU member states to support the full implementation of Echa's Risk Assessment Committee (Rac) Opinionfor the classification of all forms of titanium dioxide as a category 2 carcinogen.
NGOs Call for FCM Scope in REACH Phthalates Restriction
Jul 10, 2018 | Chemical Watch
By Clelia Oziel

NGOs are urging EU member states to include food contact materials in the scope of a proposed REACH restriction on the phthalates DEHP, DBP, DIBP and BBP in articles.
European PET Group to Join Antimony Data Gathering Effort
Jul 10, 2018 | Chemical Watch
By Leigh Stringer

The Committee of PET Manufacturers in Europe (CPME) has announced its intention to join a campaign to generate exposure information on selected REACH registered antimony substances.

Energy News

LNG Awakening Part 3: Second-Wave Developers Optimistic About Future Despite Growing Trade Disputes
Jul 10, 2018 | Natural Gas Intelligence
By Leticia Gonzales

Even with the United States seemingly on the brink of an international trade war, and growing concern in the oil and natural gas industry that recently enacted tariffs on goods from China and other countries could threaten development, second-wave liquefied natural gas (LNG) developers appear to be cautiously optimistic that the economic and environmental benefits of U.S. exports will ensure future projects get off the ground.
EPA Takes Next Step Toward Replacing Obama-Era Climate Rule
Jul 10, 2018 | The Hill - E2 Wire
By Timothy Cama

The Trump administration is taking a big step toward in its effort to replace the Obama administration’s climate change rule for power plants with a more industry-friendly alternative.
Cheniere to Develop LNG Futures Contract with CME Group
Jul 10, 2018 | Houston Chronicle
By Katherine Blunt

Cheniere Energy is working with derivatives marketplace CME Group to develop a futures contract for liquefied natural gas, a move that could make the burgeoning market for U.S. LNG more transparent as a host of companies move toward exporting it.
Power Producers Fear N.Y. Customers Could Pay Twice for Carbon
Jul 10, 2018 | E&E Energywire
By Saqib Rahim

A group of New York power generators and consumers yesterday warned of a possible collision between the state's initiatives on pricing carbon and parallel efforts by its independent grid operator.
D.C. Circuit Rejects Claims of FERC Bias
Jul 10, 2018 | E&E Greenwire
By Ellen M. Gilmer

Federal judges rejected a sweeping lawsuit today from environmentalists who say federal regulators are fundamentally biased in favor of pipelines.
Report: Human Error Caused Pipeline Explosion That Killed 2 in Northern Illinois
Jul 10, 2018 | AP (In Chicago Tribune)

Federal officials say human error was the cause of a northern Illinois natural gas pipeline explosion last year that killed two men and left two others seriously injured.

Chemical Security News

DOE to Seek Comments on Critical Power Infrastructure
Jul 10, 2018 | E&E Energywire
By Rod Kuckro

The Department of Energy will soon publish proposed regulations outlining how it plans to "receive, hold and share" critical electricity infrastructure information from utilities, a senior DOE official said yesterday.

Transportation and Infrastructure News

Transportation Law Update: A Primer On The MCS-90 Endorsement
Jul 9, 2018 | Lexology

The MCS-90 endorsement is one means by which an interstate motor carrier can demonstrate compliance with minimum financial requirements established by federal statute and regulations.
Union Pacific Recognizes Safe Chemical Transporters
Jul 10, 2018 | Bulk Transporter

Union Pacific recently recognized 54 companies with its distinguished Pinnacle Award for their commitment to safely transporting chemical products.

Environment News

Kavanaugh's Record: Climate Regs, Pipelines, LNG and More
Jul 10, 2018 | E&E Energywire
By Ellen M. Gilmer

President Trump has selected a Washington, D.C., insider as his pick to replace the retiring Justice Anthony Kennedy on the Supreme Court.
Kavanaugh Can 'Sympathize' on Climate but Questions Action
Jul 10, 2018 | E&E Climatewire
By Benjamin Hulac and Adam Aton

President Trump picked Brett Kavanaugh, a federal appeals judge with a history of challenging environmental protections, to fill the Supreme Court seat held by Justice Anthony Kennedy, the court's longtime swing vote, who will retire at the end of the month.
Kavanaugh Has Deep Record of Questioning EPA Authority
Jul 10, 2018 | E&E Daily
By Amanda Reilly

President Trump tapped Brett Kavanaugh, an influential conservative judge who has had a hand in a number of consequential environmental decisions over the past dozen years, to be the next Supreme Court justice.
Ewire: Experts Expect Kavanaugh to 'Cabin' EPA Authority
Jul 10, 2018 | Inside EPA

Legal experts say that appellate judge Brett Kavanaugh, President Donald Trump's nominee for the Supreme Court, is likely to limit any future strict EPA regulations if they were adopted without clear statutory authorization, even if they address a problem that he acknowledges poses risks, such as climate change.
Del. Loses Bid to Block Philly-Area Ozone Extension
Jul 10, 2018 | E&E Greenwire
By Sean Reilly

A federal appellate court has sided with EPA in a lawsuit challenging the agency's decision to give the Philadelphia area an extra year to meet the 2008 national ground-level ozone standard.
Developers Go With the Flow as New Water Rules Kick In
Jul 10, 2018 | The Wall Street Journal
By Lara Korte

Four years ago, Elm Street Development broke ground on a 535-unit detached housing project south of Baltimore along one of the tributaries of the Chesapeake Bay including 8 miles of trails and a 40-slip marina.
Washington Posted First Code Red Day Since 2012 on Monday Due to ‘Unhealthy’ Pollution Levels
Jul 10, 2018 | The Washington Post
By Jason Samenow

Washington’s improving air quality in recent decades is one of its great environmental success stories.

Industry and Association News

(ACC Mentioned) 5 Polluting Industries That Won Big from Scott Pruitt’s Tenure at the EPA

Jul 10, 2018 | Vox

By Umair Irfan

Scott Pruitt’s sudden exit as administrator of the US Environmental Protection Agency on Thursday was the culmination of a stunning list of scandals after leaks and reports revealed that he’d turned his office into a virtual ethical Superfund site.
Yet even on his way out the door, Pruitt managed to give a parting gift to one of the industries the EPA is supposed to regulate: manufacturers of “super polluting” trucks, who wanted to keep open a loophole the Obama administration tried to eliminate.
Michael Grunwald at Politico made the case earlier this year that Pruitt’s effectiveness at the EPA is overstated. Much of his work in undoing EPA regulations has been theatrical announcements with flimsy technical pretexts that will wither under legal challenges.
But while making (or unmaking) environmental rules is a process that takes years, the industries that chafe most at EPA regulations — automakers, big farmers, coal barons, and chemical manufacturers among them — found plenty of opportunities to celebrate during Pruitt’s time in office. And these gains for industry come at the expense of the health of all of us, particularly the poor and minorities.
“A central feature of [Trump’s] agenda is environmental damage: making the air dirtier and exposing people to more toxic chemicals,” wrote researchers Francesca Dominici and David Cutler in the Journal of the American Medical Association Forum. “The beneficiaries, in contrast, will be a relatively few well-connected companies.”
Coke producers in East Chicago, Indiana, were fined $5 million by the Environmental Protection Agency for air pollution violations. Tigerhill/John Hill/US Army Corps of Engineers, Chicago District
Here are some of the biggest beneficiaries of Pruitt’s tenure at the EPA, and who may continue to receive favorable policy treatment under his successor, Acting Administrator Andrew Wheeler. This list is by no means exhaustive.Glider kit manufacturers caught a huge break for their massively polluting trucks
On Friday, Pruitt’s last day, he signed off on a massive pollution exemption for glider kits. These are new truck bodies using salvaged engine components.
They were intended as a way to recover hardware in damaged trucks. However, these engines are held to lower emissions standards, so glider kits quickly became a growing loophole to avoid buying expensive hardware to control pollutants like nitrogen oxides and particulates. The EPA found that glider trucks can emit upward of 55 times the pollution of trucks equipped with modern pollution controls. If current trends hold, glider trucks would account for half of all nitrogen oxide pollution from trucks by 2030.
A small group of manufacturers sprung up to exploit this, but the Obama administration set a cap of 300 new glider trucks that was supposed to take effect this year. However, Pruitt’s EPA told manufacturers last Friday that it would not enforce this cap for two years as it works to repeal the cap for good.
“Our goose was cooked until President Trump and Pruitt came to town,” wrote Tommy Fitzgerald Sr., CEO of Fitzgerald Glider Kits, the largest US glider truck manufacturer, in the Daily Caller.Auto companies got a freeze in fuel economy standards
In April, Pruitt announced that the EPA will freeze corporate average fuel economy standards (CAFE), arguing that the trajectory launched by the Obama administration would be too difficult for manufacturers to hit.
The transportation sector is now the largest greenhouse gas emitter in the United States and vehicles are the biggest source of air pollution. The Union of Concerned Scientistsestimated that the Obama-era rules would avert 570 million metric tons of greenhouse gas emissions by 2030, equivalent to stopping 140 typical coal-fired power plants for a year.
The announcement was huge relief for some automakers who say that US consumers want larger, thirstier cars, especially with relatively low gas prices. Ford said earlier this year that it is phasing out production of sedans altogether.
Lower fuel economy standards mean that manufacturers won’t have to invest as much in coming up with more efficient engines while allowing them to sell more high-margin products like SUVs and pickup trucks.
Activists illuminated EPA headquarters earlier this year with a message calling for Administrator Scott Pruitt to be fired. Umair Irfan
“This was the right decision, and we support the Administration for pursuing a data-driven effort and a single national program as it works to finalize future standards,” the Alliance of Automobile Manufacturers, a trade group representing 70 percent of car and light truck sales in the US, wrote in a statement.
However, the weakened standard hurts carmakers that already have fuel-efficient fleets like Toyota and Honda, and it shrinks a key revenue stream for electric car manufacturer Tesla. That’s because these companies all make money selling clean car credits to other companies.
And as Robinson Meyer at the Atlantic noted, even as they got what they wanted, some carmakers got cold feet from being so closely linked to a Trump administration policy:
Initially, Pruitt had planned to announce the CAFE rollback on April 3 at a Chevrolet dealer in Virginia. But other Chevy dealers hated that idea, and the administrator canceled the event. Soon other automakers had backed off the administrator. “We support increasing clean car standards through 2025 and are not asking for a rollback,” wrote Bill Ford, the executive chairman of the eponymous automaker, in a Medium post. A Honda vice president told The New York Times: “We didn’t ask for that.”
Perhaps they remembered that Democrats, liberals, environmentalists, and Californians buy cars too.Big agriculture received a reprieve from water and pesticide regulations
One of the most controversial environmental regulations under the Obama administration was the Waters of the United States rule issued under the Clean Water Act. The regulation was meant to clarify what waterways fall under federal jurisdiction.
About one-third of Americans get their drinking water from the waterways regulated under WOTUS.
However, farmers, ranchers, and property developers saw it as a federal land grab. So they were quite pleased when Pruitt announced that he would delay the rule from going into effect for two years.
“Today’s announcement is part of a measured and thoughtful process to provide regulatory certainty to farmers and ranchers while the agencies continue the important work of withdrawing and rewriting the unlawful 2015 WOTUS rule,” wrote American Farm Bureau Federation President Zippy Duvall in a statement in January. “Without today’s action, countless farmers and ranchers, as well as other landowners and businesses, would risk lawsuits and huge penalties for activities as common and harmless as plowing a field.”
The EPA still has to come up with an alternative to the Obama-era regulation, but what they have in the works is likely going to be a much weaker standard.
Another key victory for big agriculture was the EPA’s decision not to ban the pesticide chlorpyrifos, contradicting the agency’s own recommendations. The pesticide is linked to neurological damage and developmental delays, particularly among young people. Coincidentally, the EPA also proposed changes to pesticide handling rules that would lift minimum age limits to handling these substances.The chemicals industry got a lower bar to clear
Chemicals manufacturers also benefitted from Pruitt’s time in office. The EPA weakened a key chemical safety protection law, the Toxic Substances Control Act. The agency limited what chemicals it would review and restricted the kinds of harms it would consider in its safety evaluations.
Reviews of flame retardants like asbestos were also halted at the EPA.
Facilities that emit hazardous chemicals were also exempted from the “once in, always in” rule, which could allow heavy polluters to backslide and let more dangerous substances into the air.
“The regulated community has long opposed this policy and EPA’s enforcement of it as if it were a rule,” wrote Anna Burhop of the American Chemistry Council, a lobbying group for chemicals manufacturers, in a comment letter to the EPA.
Pruitt’s EPA also dialed back enforcement, collecting less than half the amount of fines from polluters in the Trump Administration’s first year in office compared to the same time period under the last three presidents.
Christina Animashaun/Vox
The EPA Risk Management Program, also known as the Chemical Disaster Rule, has been delayed by more than a year. The measure emerged after a string of chemical accidents in the United States in 2013 to add new safety requirements to chemicals facilities.
The EPA did grudgingly introduce new chemicals rules moving forward with a proposal to ban methylene chloride, a substance found in paint strippers that has killed people.Fossil fuel companies breathed easier under Pruitt
The day before Scott Pruitt was sworn in at the EPA, Trump repealed the stream protection rule, a regulation meant to protect waterways from mining waste.
“This is one very, very important step to get coal back on its feet and stop the hemorrhaging of jobs that we’ve seen,” said Luke Popovich, a spokesman for the National Mining Association, a trade group.
Pruitt quickly picked up the baton. After pushing Trump to withdraw from the Paris Climate Accord, Pruitt started the process of repealing the Clean Power Plan, Obama’s signature policy for controlling greenhouse gas emissions from power plants.
“The Clean Power Plan would devastate coal-fired electricity generation in America as well as the United States’ coal industry,” said Bob Murray, CEO of Murray Energy, the largest underground coal mining company in the US, during a public hearing.
The EPA is also in the process of loosening rules on coal ash disposal sites, deferring management authority to state regulators. “The EPA estimates that these sites are responsible for at least 30 percent of all toxic pollution coming from industrial pollution,” Frank Holleman, senior attorney for the Southern Environmental Law Center, told the Daily Beast.
But even some conservatives thought Pruitt’s subservience to the coal industry was too much. Republican strategist Rick Wilson writing in the Daily Beast:
Like much of Trump’s energy policy, their fetishization of coal seems to contain a weird, Rule 34-ish desire to see hearty men headed down-pit with pickaxes and wearing helmets with sputtering carbide lamps. It’s not happening. It’s never happening. It’s a dead industry—dirty, inefficient, and outdated. Obama didn’t kill coal; natural gas and solar killed coal, and nothing Pruitt could do is going to bring it back.
Pruitt also delayed new regulations on methane emissions. Methane is the main ingredient in natural gas and is also a potent greenhouse gas. And he signed off on the Alberta Clipper tar sands pipeline. Pruitt at one point rented a condo from the wife of the lobbyist whose firm represented the company behind the pipeline, Enbridge.Much of Pruitt’s EPA agenda will continue under Acting Administrator Andrew Wheeler
Andrew Wheeler, who took over the EPA as acting administrator on Monday, is proudly picking up Pruitt’s baton. Wheeler previously worked at the EPA in the toxic chemicals office and lobbied for several companies, including Murray Energy.Acting Administrator Wheeler@EPAAWheeler
Acting EPA Chief Plans to Stick With @POTUS Trump’s Priorities via @WSJhttps://www.wsj.com/articles/new-epa-chief-plans-to-stick-with-trumps-priorities-1530919299?redirect=amp#click=https://t.co/P8SoEHCNEI …6:19 PM - Jul 9, 2018Acting EPA Chief Plans to Stick With Trump’s Priorities
Andrew Wheeler, who was named acting chief after Scott Pruitt resigned, said he plans to stick with Trump’s priorities, including changing the Clean Power Plan and de-emphasizing climate-change...wsj.com198185 people are talking about thisTwitter Ads info and privacy
“If the environmentalists think [Trump is] going to make promises and we’re going to do the opposite, then there’s not a lot of common ground to work on,” Wheeler told the Wall Street Journal. “I’m going to continue to move forward with those” priorities Pruitt laid out on behalf of Trump.
However, he said that he is explicitly trying to turn down the political heat around the agency, perhaps in hopes of drawing less scrutiny than his predecessor.
“You might see a shift in terms of how I talk about some things,” Wheeler told the Wall Street Hournal. “I have thought for years environmental issues need to be depoliticized. In 1991 when I came to town they were not as politicized as they are today. And I would love to return to that.”
That means Wheeler will likely continue running up the score on behalf of the same interests that Pruitt set out to serve but with a much lower profile. Environmental activists in turn are keeping up the pressure to limit what Wheeler can accomplish.
“We won’t let him get away with it,” wrote Mary Anne Hitt, director of Sierra Club Beyond Coal Campaign. “All of the energy and passion that went into #BootPruitt will continue, focused on Andrew Wheeler and making sure the EPA returns to its mission.”
https://www.vox.com/energy-and-environment/2018/7/10/17548250/scott-pruitt-epa-truck-cars-chemicals-andrew-wheeler

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Chemical Management News

(ACC Mentioned) The EPA Really Doesn’t Want You To Know How Cancerous Formaldehyde Is

Jul 10, 2018 | Care2.com

By Kevin Mathews

Remember a couple months ago when Americans learned that the government had buried a study with some alarming findings about chemicals in our drinking water? Apparently, that sort of thing has been a pattern under the Trump administration.
This time the vanished study deals with formaldehyde, a chemical so common that you’ll find it in body wash, cosmetics, cars and furniture. Newly resigned EPA Chief Scott Pruitt confirmed the study was ready to be released five months ago, but after taking a meeting with the American Chemistry Council’s Formaldehyde Panel, the research is still nowhere to be found.
The study should absolutely see the light of day. Given that the reported finding – that exposure to formaldehyde is likely linked to leukemia as well as nose and throat cancers – is so drastic, people have a right to know what government scientists have discovered.Be an informed activist.
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However, the EPA seems to have granted more consideration to the Formaldehyde Panel’s concerns. The group’s leader, Kimberly Wise White wrote a letter expressing that releasing the study would “cause irreparable harm to the companies represented by the panel.” And what of the “irreparable harm” suffered by Americans who needlessly develop cancer from formaldehyde exposure?
New York Magazine helpfully reminds us that last year Pruitt sacked a bunch of scientists from the Science Advisory Board and instead appointed industry people to the board – including Ms. White herself! Could the consequences of cutting academics in favor of industry executives be any more obvious?
Quite responsibly, the magazine also notes that the MIA study still warrants some outside peer review to verify the results. Heck, writer Eric Levitz even contends that it’s justifiablefor the chemical industry to raise some concerns. The problem, though, which Levitz also acknowledges, is that the EPA is allowing the industry to eliminate the research altogether before any scrutiny occurs.
For what it’s worth, the EPA has already given half a million dollars to the National Academies of Sciences to conduct peer review on this particular research; the NAS can’t complete the work though since the EPA won’t hand over the study. Sounds like both a waste of time AND money.
Will things get better under new, acting EPA director Andrew Wheeler? Considering that he used to be employed as a chemical lobbyist and he was part of a team that stalled previous formaldehyde research, the outlook doesn’t look bright.
In the past, the EPA has labeled formaldehyde a “probable carcinogen,” which is a safe way of acknowledging other studies without being obligated to pass regulations that keep American safe. If the most recent research were to be accepted and published, the EPA would have a much harder time justifying not taking legitimate regulatory action to protect the nation’s health.
https://www.care2.com/causes/the-epa-really-doesnt-want-you-to-know-how-cancerous-formaldehyde-is.html

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To Rebuild Trust After Pruitt, EPA Should Ban These Toxic Chemicals

Jul 10, 2018 | Environmental Working Group

By Scott Faber

Thanks to President Donald Trump, Americans’ confidence in the Environmental Protection Agency has never been lower.
Since taking office, Trump and his minions have sought to roll back 76 environmental safeguards, according to Harvard Law School’s regulatory rollback tracker. Trump’s decisions have created a toxic mess of more air and water pollution. One study estimated that former EPA Administrator Scott Pruitt’s proposal to weaken air quality standards could lead to 80,000 extra deaths per decade.
No wonder Pruitt’s approval rating was even lower than President Trump’s – that is, before the scandal-plagued administrator “resigned” last week.
This week, acting EPA Administrator Andrew Wheeler replaced Pruitt. But it will take more than a commitment to greater transparency, which Wheeler pledged, to rebuild trust in Trump’s EPA.
To rebuild confidence, Wheeler should start by following through on plans to ban some or all uses of four toxic chemicals: chlorpyrifos; methylene chloride; n-methylpyrrolidone, or NMP; and trichloroethylene, or TCE.
The EPA had planned to ban chlorpyrifos and some uses of the other three chemicals. But Pruitt reversed or delayed those bans indefinitely. Even though Pruitt recently announced plans to move forward on the proposed ban on methylene chloride in paint strippers, he left many details unanswered.
The science supporting the bans could not be clearer. Chlorpyrifos has been linked to brain damage in children, TCE is known to cause cancer, methylene chloride has caused dozens of deaths, and NMP is linked to developmental, reproductive and neurotoxic disorders. But under pressure from the chemical industry, Pruitt put profits ahead of public health.
Under its new leadership, the EPA should not wait to finally ban chlorpyrifos, and to end certain uses of NMP and TCE. The EPA should move quickly on plans to finally ban methylene chloride in paint strippers. What’s more, the agency shouldn’t cook the booksas it considers the fate of asbestos – which causes lung cancer – and other new and old chemicals, as Sen. Tom Carper, D-Del., wrote in a letter to Wheeler.
If Andrew Wheeler wants to restore faith in the EPA, he should start by protecting Americans from these toxic chemicals.
https://www.ewg.org/news-and-analysis/2018/07/rebuild-trust-after-pruitt-epa-should-ban-these-toxic-chemicals#.W0TRqtUza6I

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Residents Urge Court to Ignore DOJ Argument Over PFAS Monitoring

Jul 10, 2018 | Inside EPA

Residents exposed to perfluorinated chemicals from military sites in Pennsylvania are urging an appellate court to reject Justice Department (DOJ) arguments in a recent letter that a federal pilot biomonitoring study moots their arguments in a pending case seeking medical monitoring paid for by the Navy.
The residents in a July 9 letter to the U.S. Court of Appeals for the 3rd Circuit say they object to DOJ's July 3 letterto the court “because it does not provide 'supplemental authority', but instead seeks to present new evidence which is outside the record,” and therefore the court should disregard it.
The plaintiffs in Kristen Giovanni, et al., and Dorothy Palmer, et al. v. Navy are asking the appeals court to overturn a lower court's rulings that dismissed their cases as being prohibited under section 113(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Superfund law, which bars pre-enforcement judicial review of cleanup decisions.
The plaintiffs were exposed to two per- and polyfluoroakyl substances (PFAS) -- perfluorooctanoic acid and perfluorooctane sulfonate -- that have been linked to several latent and serious diseases, including cancer. They want the court to require the Navy to fund medical monitoring of their exposure to PFAS and argue the Resource Conservation & Recovery Act allows them to bypass the service's sovereign immunity and other defenses against the claims they brought under state law.
The 3rd Circuit heard oral argument in the case April 26.
DOJ's letter points to the Agency for Toxic Substances Disease Registry's (ATSDR) support for “implementation of a 'pilot biomonitoring program for residents in Bucks and Montgomery Counties,' where plaintiffs reside,” adding that such ATSDR activities fall within the statutory definition of removal actions, and therefore fall under the 113(h) bar.
But the residents counter that the information about the ATSDR activities is new evidence and not supplemental authority, in part because DOJ has cited no new authority in presenting the information. “Consequently, the alleged 'developments' that the Government cites cannot determine the outcome of this appeal,” they write.
“Moreover, even if such evidence could be considered, it does not, as the Government claims at page 2 of its letter, transform this lawsuit -- a private medical monitoring claim against the U.S. Navy -- into a 'challenge of ongoing actions taken by ATSD,'” the plaintiffs say, referencing earlier briefing that discusses how their case differs from a challenge to ATSDR.
“Because the complaint does not even mention the ATSDR, let alone ask the ATSDR to do anything, it presents no challenge whatsoever to ATSDR's alleged activities,” the residents write.
https://insideepa.com/daily-feed/residents-urge-court-ignore-doj-argument-over-pfas-monitoring

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Industry, NGOs Welcome Canadian Government Cepa Response

Jul 10, 2018 | Chemical Watch

By Kelly Franklin

Industry groups and NGOs have welcomed the Canadian government's commitment to overhauling the country's key chemical management law, despite differing views on how quickly the reforms should be implemented.
Late last month, the government issued a response to recommendations made a year earlier by the parliament's Standing Committee on the Environment and Sustainable Development on how to update the Canadian Environmental Protection Act (Cepa) and the country's Chemical Management Plan (CMP).
Here it agreed with "the intent" of most of the committee's 87 recommendations. But it put off any legislative changes until a "future parliament" – effectively pausing action until 2020.
The report did not endorse the contentious proposal that the CMP impose a 'reverse burden of proof' on a subset of SVHCs – barring their entry into the marketplace until they can be proven safe. Instead the government said it "recognises the committee's concern and commits to further consider" the idea in the CMP post-2020 process.Industry view
The Chemistry Industry Association of Canada (Ciac) said it was pleased with the response. President and CEO Bob Masterson in particular applauded the government’s "commitment to the Chemicals Management Plan and the risk-based assessment and management of chemicals".
He pledged a "belief in the concept of continuous improvement" and to carry on working with the government "to inform their work in amending Cepa and to support a risk-based framework."
Gary LeRoux, president and CEO of the Canadian Paint and Coatings Association (CPCA), likewise praised the continued commitment to an "evidenced-based" approach, one that "has proven that it can assess a large number of chemicals for the benefit of human health and the environment," he said.
"Other approaches have shown that such benefits are often delayed, due to a reliance on a hazard-based approach such as under REACH, which takes years for assessments to be completed," he told Chemical Watch.
Mr LeRoux also said the trade body was pleased to see that the government would not be moving forward with amendments to Cepa until after the next election in 2019.NGO response
Environmental and consumer advocacy groups welcomed the commitment to act. In a joint statement, five organisations – including Environmental Defence and Ecojustice – described the response as outlining a "strong roadmap that would ensure meaningful and comprehensive reforms to this important law."
But the NGOs said they were disappointed that updates to the nearly 20-year old law would not be seen more quickly.
"We are very disappointed that this government is not moving forward today with much-needed reforms to our outdated Cepa," said Jennifer Beeman of Breast Cancer Action Quebec. "We expect Cepa reform to be more than an election promise."
Muhannad Malas of Environmental Defence said he is looking to the government to "take immediate steps to implement solutions, such as full disclosure and labelling of consumer products containing toxics" until legislative reforms come through.Immediate actions
The government said it would work to implement some of the recommendations that do not need legislative changes immediately. These include:"working to enhance" how it protects vulnerable populations, including by developing a policy framework for considering groups like children, pregnant women and the elderly during chemicals management and assessment;"taking action to protect Canadians from chemicals of high concern", including endocrine disruptors; andupdating standards to reduce air pollution from industrial sources.
https://chemicalwatch.com/68497/industry-ngos-welcome-canadian-government-cepa-response

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Classify All Titanium Dioxide Forms as Suspected Carcinogens, Member States Urged

Jul 10, 2018 | Chemical Watch

By Luke Buxton

A group of NGOs has called on EU member states to support the full implementation of Echa's Risk Assessment Committee (Rac) Opinionfor the classification of all forms of titanium dioxide as a category 2 carcinogen.
The call comes after the European Commission, Slovenia and the UK proposed a derogation to classify only powder forms or to exclude particle toxicity and/or the liquid form under the CLP Regulation.
Member state competent authorities have been discussing the Opinion – published in June 2017 – in meetings of the REACH Committee and the Competent Authorities for REACH and CLP (Caracal). They have until 13 July to submit their comments to the European Commission, ahead of a possible vote in September.
But in a letter to member state competent authorities, the NGOs urge them to reject the derogation proposal. Backing it, they say, would "disregard" important factual elements and depart from science- and evidence-based processes. It could also set a "dangerous precedent" and "could possibly be considered illegal".
The 12 NGOs include:the Center for International Environmental Law (Ciel);the European Environmental Citizens Organisation for Standardisation (Ecos);the European Environmental Bureau (EEB); andthe Health and Environment Alliance (HEAL).
They say industry chose to provide a very general definition and assessment of titanium dioxide in the registration form. This meant "distinctions were not made" between the ‘bulk’ and nanoforms, or between different nanoforms.
The registrants refused Echa’s subsequent request for further information to distinguish between different nanoforms of the substance.
They took the case to the Echa Board of Appeal, which ruled against the agency’s Decision requiring more detail.
The BoA said a registrant can give a broad definition of the substance it intends to register, for example, by including both its bulk and nanoforms – but if it does so, the hazards posed by all possible forms must be addressed by the toxicological and ecotoxicological information provided in the dossier.
It "considered the obligations of registrants defining broadly their substances and said that they must demonstrate the safe use of all the forms possibly covered", the BoA said.‘Science-based’
The NGOs say the Rac’s Opinion "is science- and evidence-based, and properly adopted (by consensus) on the basis of a strict legal procedure and available information".
They add that there is "no scientific evidence" that the liquid form of titanium dioxide does not potentially cause cancer – for example by inhalation exposure of other forms of the chemical, such as liquid form through aerosols.
With this in mind, they say they do not see any "valid or acceptable" reason to exclude any form of the substance from being classified as a suspected carcinogen as recommended by Rac.Careful balance
A "careful balance" of REACH and CLP procedures has been established to guarantee fair consideration of all arguments in a science-based process, the NGOs say.
This would be "seriously jeopardised" if member states adopt the Commission’s proposal.
They say ignoring science to "privilege the business-as-usual operations of certain economic actors" in violation of the rule of law, will not be appreciated by a public that "already doubts" the European institutions’ commitment to protect citizens and environment.
Should additional scientific information be provided, the groups adds, this classification decision can be revised without endangering the "carefully established" science-based regulatory framework.
It is also critical to note, they say, that this is about substance classification and labelling, not about restriction or risk management measures.
https://chemicalwatch.com/68516/classify-all-titanium-dioxide-forms-as-suspected-carcinogens-member-states-urged

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NGOs Call for FCM Scope in REACH Phthalates Restriction

Jul 10, 2018 | Chemical Watch

By Clelia Oziel

NGOs are urging EU member states to include food contact materials in the scope of a proposed REACH restriction on the phthalates DEHP, DBP, DIBP and BBP in articles.
In a letter to REACH Committee members ahead of their tentative vote on 11 July, the European Environmental Bureau (EEB) and CHEM Trust say they are "very concerned" that the proposed restriction excludes the use of the phthalates in FCMs "although the majority of exposure to DEHP comes via food".
The four phthalates are on the REACH candidate list of SVHCs for their reprotoxic as well as endocrine disrupting properties.
The EU has a separate regulatory system for chemicals in food contact materials but it is "insufficiently protective", the NGOs say.
There is "no scientific or policy justification", they add, for excluding FCMs. "How is it possible to justify a ban on their use in our living rooms, when permitting continued use in our kitchen?"
REACH restrictions are permitted to cover such uses, they add, and it is "more logical, administratively efficient"; regulatory action is "likely to be more rapid" if these are included.
The NGOs are asking the committee to vote in favour of the proposal, but also want it to:reject the proposed exemption for articles exported to third countries;reject the exemption for outdoor, industrial and agriculture uses because they may still pose a significant threat to human health and the environment;reduce the European Commission’s deferral proposal of 60 months for automotive and aerospace articles used in the interior of aircrafts and motor vehicles – since children and adults can be exposed to high levels of these four phthalates; andreject the general exemption for spare parts, both for the automotive and aircraft sectors. A deferment may be needed, but it should be time limited.
Echa’s Committees for Risk Assessment (Rac) and Socio-economic Analysis (Seac) agreed on the restriction proposal last year.
Rac's recommendation is to restrict phthalates in articles that cause exposure through the skin or by inhalation. This would cover products, such as flooring, coated fabrics and paper, recreational gear and equipment, mattresses, footwear, office supplies and equipment, and other articles moulded or coated with plastic.DEHP authorisation
The REACH Committee should also reject an authorisation application for the use of DEHP in PVC articles, the NGOs say in their letter.
Its members are expected to vote on the application by Grupa Azoty Zakłady Azotowe Kędzierzyn and Deza.
This has been dogged by legal action from NGOs over flaws in the authorisation and access to information. Echa has agreed to grant it but the Commission has yet to approve a final decision.
EEB and CHEM Trust say the authorisations are "not in keeping" with REACH and would undermine its main objective to encourage substitution of SVHCs with less hazardous alternatives.
The risks related to the uses of DEHP are not adequately controlled, they say. There are suitable alternatives and the applicants have not been able to demonstrate that the socio-economic benefits of continued use outweigh the risks.
At the end of 2014, 55 European and international NGOs wrote to the Commission, asking it to reject the authorisation.
https://chemicalwatch.com/68533/ngos-call-for-fcm-scope-in-reach-phthalates-restriction

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European PET Group to Join Antimony Data Gathering Effort

Jul 10, 2018 | Chemical Watch

By Leigh Stringer

The Committee of PET Manufacturers in Europe (CPME) has announced its intention to join a campaign to generate exposure information on selected REACH registered antimony substances.
The trade group’s statement comes as Germany's Federal Institute for Occupational Safety and Health (Baua) assesses the potential carcinogenicity of five antimony compounds. This could result in the reclassification of one or more of them.
In response to Baua’s assessment, the International Antimony Association (i2a) said in May that it is to run a data gathering campaign next year.
And now CPME has committed to taking part and urges others along the supply chain to do so. Its members use antimony as a catalyst in the production of polyethyleneterephthalate (PET) resin, used to make plastic bottles. PET is also used to make fibres and films.
Mike Neal, chair of the CPME’s health and safety committee, said ensuring the safe use of antimony is important for the sector, for the sake of its manufacturing staff and consumers. But also because there are issues with its two alternatives – titanium and germanium catalysts.
The available titanium catalysts, which are acceptable for films and fibres, are currently not suitable for PET resin, Mr Neal told Chemical Watch. They have not "solved an unacceptable yellow colouration in the polymer".
Meanwhile, germanium is expensive and not as abundant as antimony. "There is not enough to cover and replace antimony catalysts across the global PET industry," he said.New data
Mr Neal said the European PET industry has already been involved in gathering data on antimony. This dates from the European Food Safety Authority's (Efsa) risk assessment on antimony trioxide migration limits from food contact materials around 2004.
But animal toxicity studies, released last year, raised questions on whether current exposure limits are adequately protecting health and if other measures should be adopted to safeguard workers handling antimony substances.
CPME decided to join the campaign because the available data on antimony trioxide is relatively old and only covers the inhalable size particles.
"The PET sector seized the value of fulfilling the exposure data requirements, triggered by the more recent scientific and regulatory considerations. This is a great example of product stewardship, that i2a hopes will inspire many more actors of the antimony value chain," i2a said.
The animal test results, based only on respirable particles (<4µm), are driving authorities to consider whether exposure limits in workplace aerosols are required for this size particles, as opposed to the traditionally measured inhalable size (<100µm), it said.
Therefore, the i2a campaign will focus its efforts on generating data for:inhalable and respirable size particles of occupational aerosols;several workplaces;operational conditions; andeach specific use of the antimony substances.
Last month, i2a organised a workshop to encourage sectors along the supply chain to get involved. In a statement afterwards, it said: "The data will only be of value to regulatory agencies if a sufficient number of data points is collected – to reach the required statistical robustness – and each data point is collected with complete contextual information that defines the work conditions, job activities and sampling time during personal monitoring."
The antimony association added that the data collected through its campaign will "address the shortcomings identified in previous exposure assessments before and since the REACH Regulation. It will also inform Germany’s Baua, and other regulatory bodies, about current exposure levels during the handling of antimony in the workplace."
https://chemicalwatch.com/68491/european-pet-group-to-join-antimony-data-gathering-effort

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Energy News

LNG Awakening Part 3: Second-Wave Developers Optimistic About Future Despite Growing Trade Disputes

Jul 10, 2018 | Natural Gas Intelligence

By Leticia Gonzales

Note: This is the third in a three-part NGI series titled “Navigating the Nascent LNG Market Through A Choppy World Trade Sea,” which explores the emerging global liquefied natural gas market and the challenges it poses to buyers and sellers seeking to capitalize on the worldwide expansions underway.Part three of a three-part series (See Part One; Part Two)
Even with the United States seemingly on the brink of an international trade war, and growing concern in the oil and natural gas industry that recently enacted tariffs on goods from China and other countries could threaten development, second-wave liquefied natural gas (LNG) developers appear to be cautiously optimistic that the economic and environmental benefits of U.S. exports will ensure future projects get off the ground.
NextDecade Corp. CEO Matthew Schatzman recently touted LNG exports as a way for the U.S. government to positively impact the environment by promoting the use of low-cost natural gas over coal in both developed and emerging markets. NextDecade is developing the Rio Grande LNG export project at the southern tip of Texas in Brownsville.
Schatzman told NGI he thinks the global market needs at least 150 million metric tons/year (mmty) of new liquefaction capacity by 2025. Two-thirds of the supply likely would come from North America, mainly from the U.S. Gulf Coast.
“The U.S. has abundant natural gas reserves and is well-positioned to provide global markets with reliable, low-cost LNG. In fact, due to its abundance of natural resources, the United States has an opportunity to emerge as the world’s largest supplier of LNG in the coming years,” Schatzman said.
Still, the recent tariffs imposed on steel and aluminum from China, the European Union, Mexico and Canada, as well as additional tariffs on Chinese products collectively valued at about $50 billion in 2018 trade values, are keeping some in the industry on pins and needles when it comes to whether the United States will be able to capitalize on the rapidly growing LNG demand in the Asia Pacific region.
“Some of these LNG project developers have pointed out that Chinese customers are telling them that they can buy their LNG from several other producers,” an official with an LNG consultancy said. China’s three largest LNG suppliers today are Australia, Qatar and Malaysia, while pipeline imports come from central Asia and Myanmar.
The office of U.S. Trade Representative Robert Lighthizer on June 15 issued two lists of tariff lines covering Chinese products -- including check valves, pressure-reducing valves, and safety or release valves used for pipes and tanks, among others -- deemed detrimental to the oil and gas industry.
That’s on top of the tariffs placed on Chinese steel and aluminum that went into effect on May 1 and in addition to tariffs on those products coming from the European Union (EU), Mexico and Canada.
Both Brussels and Mexico City have since filed complaints with the World Trade Organization over the tariffs. Canadian Prime Minister Justin Trudeau and Foreign Affairs Minister Chrystia Freeland announced plans to levy up to C$16.6 billion ($12.8 billion) in tariffs on a host of American-made products. Ottawa planned to solicit public comments about the proposed tariffs and potentially enact them on July 1.
While recent developments regarding steel tariffs could have an impact on the U.S. LNG industry, the full extent of these impacts is still under evaluation, said Schatzman. “The impacts will not be known until final legislative and/or regulatory frameworks are in place.”
Societe Generale (SocGen) added that it is notable that while crude oil, gasoline and coal were included in China’s list of tariffs, natural gas was excluded. “We believe it highlights the need of both the U.S. and China for growth in U.S. LNG exports in order to achieve their respective long-term goals (decarbonization for China and increased energy exports for the U.S.),” SocGen natural gas analyst Breanne Dougherty said.
Thus far in 2018, the United States has represented 8% of the LNG imported by China. China has represented 16% of U.S. LNG exports. Given that the United States is only still in nascent stages of its LNG export program, its relatively large representation in China’s LNG supply mix is notable, the investment bank said.
China is expected to lead in global LNG demand growth between 2017 and 2022, and on the supply side, it is the United States that dominates growth through 2022, according to SocGen. “With all of this in mind, it is not surprising that any potential inclusion of natural gas in a tit-for-tat tariff situation between China and the U.S. could have repercussions on the evolution of the global gas market over the next five years. It is also not surprising, however, that both China and the U.S. have motivation to keep natural gas out of any tariff conversation,” Dougherty said.
Projects including the Alaska LNG Project are counting on China to be a major export customer.
Regarding the Chinese tariffs, Alaska Gov. Bill Walker on June 18 expressed confidence that leaders would “embrace the opportunity for mutual economic growth that we can achieve by working together.”
U.S. and Chinese officials signed a joint development agreement last November to help get the gas export project off the ground. FERC in March said it planned to conduct anenvironmental review of a proposed $43 billion project. The state-owned Alaska Gasline Development Corp. (AGDC) filed an application with the Federal Energy Regulatory Commission in April 2017 to commercialize North Slope gas; a notice of application was issued shortly thereafter.
In May, the AGDC and BP plc’s Alaska unit agreed to key terms of a gas sales agreement, with both parties planning to finalize an agreement this year for AGDC to purchase BP Alaska’s share of 30 Tcf of gas from the Prudhoe Bay and Point Thomson units.
“Alaska has abundant resources, from natural gas and seafood to beer and baby food,” Walker said. “These resources enable our state to dramatically reduce the trade deficit between the United States and China, if we can finalize agreements to increase exports of our products.
Walker indicated he was heading to Washington, DC, this month to meet with leaders “who have been at the table leading the efforts to avoid an unnecessary trade war. I will continue to work directly with both sides to make sure Alaska’s interests are protected.”
LNG Export Projects Waiting in the Wings
China is set to bring online three new LNG import terminals in 2018, increasing the total number of its facilities to 20 as it seeks to shift toward cleaner energy.
Meanwhile, U.S. lawmakers continue to push FERC to approve the proposed Jordan Cove LNG export project in Oregon. Earlier in June, Rep. Scott Tipton (R-CO), whose district includes the natural gas-rich Piceance Basin, issued a call for federal regulators to approve the project to tap supplies from Western Slope producers.
Colorado gas producers are counting on Jordan Cove to move supply to Asian markets, he said. If approved, the project would be the first on the U.S. West Coast. The Federal Energy Regulatory Commission, which rejected the project two years ago, is now reviewing a revised application.
Canada, meanwhile, has LNG export plans of its own, although the proposals have been sharply whittled down -- and are long delayed. Malaysia’s state-owned energy conglomerate Petroliam Nasional Berhad, aka Petronas, in May took a 25% stake in the LNG Canadaproject led by Royal Dutch Shell plc.
A decision to start the estimated C$14 billion ($11 billion) construction project “remains pending,” according to the consortium that also includes Mitsubishi Corp., PetroChina and Korea Gas Corp. The Kitimat project, if sanctioned, would be built in stages to export up to 3.7 Bcf/d.
Wood Mackenzie analysts earlier in June said they expect the global LNG market “to tighten post 2022, and this bodes well for the project. But activity has returned to the LNG space” with a number of projects expecting to take final investment decision (FID) ahead of 2019. “A new wave of project sanctions and rising oil prices could push up project costs and dampen the economics.”
While the United States expects to be a major supplier to Asia’s surge in demand, so far only Cheniere Energy Inc.’s Sabine Pass export terminal in Louisiana and Dominion Energy’s Cove Point facility in Maryland have begun exporting LNG. Elba Island in Georgia is expected to begin commercial operations later this year.
In the next three years, trains are expected to come online at Cameron LNG in Louisiana and at two Texas projects, Freeport LNG and Corpus Christi LNG. Freeport LNG has delayed startup for its three-train project, with commercial operations beginning sequentially for the trains in the second half of 2019 into the first half of 2020. Cheniere sanctioned Corpus LNGin May.
Some LNG developers have indicated that while they welcome Chinese partners and LNG buyers, they are not relying on them for their projects to move forward. With LNG being a fungible commodity, its ultimate destination doesn’t really matter.
As for NextDecade’s Rio Grande project, Schatzman said he believes the project’s key competitive advantages -- namely its low-cost, lower risk and optimal location -- are “extremely compelling to our customers around the world.” He expects an FID by mid-2019.
Meanwhile, other second-wave LNG export developers are looking to start construction soon. Tellurian Inc. is targeting 2019 for the start of construction at its Driftwood LNG export facility near Lake Charles, LA. Driftwood, to be sited on 1,000 acres in Calcasieu Parish, LA, would require up to 4 Bcf/d of feed gas and have up to 20 trains, three storage tanks and three marine berths. It is looking worldwide to market its supply.
Even without China as a customer, however, U.S. LNG developers need China’s heavier-grade steel to build the infrastructure needed to support projects since U.S. steel companies find it too costly to produce. CEO Don Santa of the Interstate Natural Gas Association of America has called the administration’s decision to impose the tariffs "very troubling to the U.S. pipeline industry," and counter to the president’s oft-stated goal of achieving energy dominance.
"The large-diameter, thick-walled steel used to construct natural gas transmission pipelines is a niche product with unique technical specifications," Santa said. "Pipelines require specialty steel products not always available in sufficient quantities and specifications from domestic manufacturers. For certain steel products used in pipelines, no domestic product is available today."
Furthermore, as soon as the Trump administration announced that tariffs were being considered U.S. steel companies began raising their prices, sources told NGI. Facing “increases of 3-9% on raw materials,” steel companies found a loophole as the tariff was only on raw materials. “If you had a plant in another country that could fabricate the materials and ship into the states, that bypassed the tariff,” a person with steel pricing knowledge told NGI.
Aside from the potential cost increase to build LNG projects, the tariffs also are a concern “from the view of retaliation from other countries,” said Center for LNG Executive Director Charles Reidl.
Overcapacity in the steel sector remains at the center of the trade dispute, but European Commission President Jean-Claude Juncker said the European Union was not the source of the problem, and that the trade bloc was, in fact, "equally hurt by it. That is why we are determined to work toward structural solutions together with our partners…”
Despite complaints and retaliatory moves by foreign governments, U.S. Commerce Secretary Wilbur Ross predicted that any retribution on trade would be ineffectual and lead to only "trivial" cost increases for American consumers.
In response to the most recent tariffs, Beijing retaliated by designating $50 billion worth of U.S. goods for matching tariffs. In a translated statement, China's Commerce Ministry said that despite several rounds of trade negotiations, the United States "has disregarded the consensus it has formed and is fickle, provoking a trade war." The ministry added that China "does not want to fight a trade war…”
Trump, meanwhile, has warned that the United States "will pursue additional tariffs if China engages in retaliatory measures, such as imposing new tariffs on United States goods, services, or agricultural products; raising non-tariff barriers; or taking punitive actions against American exporters or American companies operating in China."
Despite the ongoing tariff saga, NextDecade’s Schatzman said he believes LNG exports can ultimately strengthen international relations while at the same time reducing the U.S. trade deficit, particularly with Japan, China and Korea. “These are the largest LNG markets in the world, and also happen to be tied to about 90% of the U.S. trade deficit.”
Reidl, however, had a different take: “...these tariffs will place over $100 billion of investment in U.S. LNG in jeopardy, kill jobs and damage valuable trade relationships with allies."
http://www.naturalgasintel.com/articles/114996-lng-awakening-part-3-second-wave-developers-optimistic-about-future-despite-growing-trade-disputes

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EPA Takes Next Step Toward Replacing Obama-Era Climate Rule

Jul 10, 2018 | The Hill - E2 Wire

By Timothy Cama

The Trump administration is taking a big step toward in its effort to replace the Obama administration’s climate change rule for power plants with a more industry-friendly alternative.
The Environmental Protection Agency (EPA) said that on Monday it sent a proposed rule to reduce carbon dioxide emissions from power plants to the White House Office of Management and Budget (OMB) for review.
The OMB review, an internal process that checks for compliance with various laws and administration priorities, is the final step before the rule can be released publicly and made available for public comment.
The EPA hasn’t revealed the contents of the proposal. The Trump administration in December requested public input on ideas for a replacement.
The rule would replace the Clean Power Plan, the main pillar of former President Obama’s climate change agenda that sought a 32 percent cut in carbon emissions from the country’s power sector by 2030. States were allowed to decide how best to accomplish that goal.
The Obama rule was put on hold by the Supreme Court in 2016 as a result of litigation led in part by then-Oklahoma Attorney General Scott Pruitt. Pruitt went on to become EPA’s administrator before resigning last week under the cloud of numerous scandals.
Pruitt and President Trump prioritized repealing the Clean Power Plan, and Pruitt formally proposed undoing it last year, an action that has not yet been made final.
Sources familiar with the EPA’s deliberations say the agency wants to write a regulation that focuses almost exclusively on making coal-fired power plants more efficient. That would result in minimal reductions in carbon emissions, and environmentalists say emissions could in turn increase since coal plants would be cheaper to operate.
While Pruitt initially did not want to replace the Clean Power Plan, industry leaders pushed him in that direction, arguing that doing so would reduce the risk of climate-change lawsuits against companies, as well as future lawsuits against the EPA for not regulating greenhouse gases.
Both Pruitt and current Acting Administrator Andrew Wheeler have expressed skepticism of the scientific consensus that climate change is caused primarily by human activity.
http://thehill.com/policy/energy-environment/396298-trump-admin-moves-forward-on-replacing-obama-epa-climate-rule

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Cheniere to Develop LNG Futures Contract with CME Group

Jul 10, 2018 | Houston Chronicle

By Katherine Blunt

Cheniere Energy is working with derivatives marketplace CME Group to develop a futures contract for liquefied natural gas, a move that could make the burgeoning market for U.S. LNG more transparent as a host of companies move toward exporting it.
CME Group, based in Chicago, announced Tuesday that it will develop the contract with delivery to Cheniere's Sabine Pass terminal in Louisiana. The Houston LNG exporter now delivers shipments indexed to the Henry Hub, a global benchmark for natural gas prices.
CME Group said in a statement that the physically deliverable futures contract would allow the industry to "manage price risk more effectively and efficiently." A futures contract allows customers to hedge price risk by agreeing to purchase a commodity at a fixed price in the future.
Cheniere pioneered LNG exports from its Sabine Pass facility in early 2016. There, the company has the annual capacity to produce 18 million metric tons of LNG per year.SPONSORED CONTENTאיך הפך מומחה העסקים של ה"ביג בויז" לגלגל ההצלה של העסקים הקטניםBy DeRothschild.co.ilRecommended Video:
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RELATED: Cheniere moves forward with third LNG unit in Corpus Christi
The company, which now ships to at least 20 foreign markets, is expanding its Sabine Pass terminal and building a second one in Corpus Christi to meet growing global demand for LNG, particularly in Asia.
Dominion Energy of Richmond, Va., also began exporting LNG from a terminal in Maryland in March. Other U.S. companies are expected to follow later this year, including two Houston firms, Freeport LNG, which will operate a Gulf Coast terminal at Quintana Island, and Kinder Morgan, which is completing an export terminal in Georgia.
Several other companies, including Sempra Energy and Tellurian of Houston, are working on projects expected to start up in the coming years.
https://www.chron.com/business/energy/article/Cheniere-to-develop-LNG-futures-contract-with-CME-13062690.php

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Power Producers Fear N.Y. Customers Could Pay Twice for Carbon

Jul 10, 2018 | E&E Energywire

By Saqib Rahim

A group of New York power generators and consumers yesterday warned of a possible collision between the state's initiatives on pricing carbon and parallel efforts by its independent grid operator.
State utility regulators are working on multiple policies to encourage low-carbon resources, and the New York Independent System Operator is exploring a carbon price of its own. Neither suite is finalized yet.
But regulators should act to prevent — or at least acknowledge — the risk that New Yorkers could end up "double-paying" for carbon, the Independent Power Producers of New York (IPPNY) and a group of power consumers called the Multiple Intervenors (MI) said in a filing yesterday.
"Suppliers should not be paid twice for the same attribute," they said in a document filed with the New York Public Service Commission. "If, arguendo, carbon pricing is implemented, then, absent the requested relief, such double-payments could occur, and they also could be substantial in magnitude and long-lasting."
IPPNY represents the state's competitive power generators, while MI is a group of about 60 "large industrial, commercial and institutional energy consumers" with facilities in New York. The groups said that double-paying, as they view it, would distort the state's competitive electricity markets.
"The PSC will be reviewing the concerns raised in the petition," said a PSC spokesperson.
With the federal government shifting into reverse on climate policy, New York has been among the more ambitious states in trying to integrate carbon into its energy markets. Gov. Andrew Cuomo (D) has tasked regulators and energy officials with moving the state's power portfolio to 50 percent renewables by 2030.
Toward that end, the state PSC is considering how to structure its financial incentives for land-based renewable energy, distributed energy resources and offshore wind.
Meanwhile, the New York Independent System Operator (NYISO) is looking at the carbon issue on its own track. Stakeholders are debating the design of a potential "carbon adder" to be folded into the everyday dealings of wholesale power markets. IPPNY supports the concept (Energywire, May 2).
The PSC and NYISO initiatives remain largely unfinished. But IPPNY and MI said it's possible they could become duplicative down the road.
Why? As they argue, the PSC is considering measures that would pay, whether directly or indirectly, for the carbon-avoiding value of renewable energy. And NYISO is considering measures that would directly price carbon.
As the thinking goes, if a solar or wind project gets a 20-year contract with the state for its renewable energy, and NYISO enacts a carbon price down the road, the project will receive two streams of earnings for the same thing.
IPPNY and MI didn't specify a policy action, but they asked the PSC to "take action to protect New York consumers, and the relative competitiveness of the State's wholesale electricity markets, by, inter alia, eliminating, or at least minimizing, the possibility of double-payments in the event that carbon pricing is implemented by the NYISO sometime in the future."
Anne Reynolds, executive director for the Alliance for Clean Energy New York, said it sounds like a technical issue that can be worked out in the design of the incentives.
She emphasized, however, that policy uncertainty would scare off investment. To raise money, solar and wind developers need to secure long-term revenue contracts, such as the kind that New York currently offers.
If companies sense that policymakers have the ability to renegotiate the payments in these contracts, the revenue stream will be seen as riskier. "They can't take that to the bank," she said.
Miles Farmer, a staff attorney with the Natural Resources Defense Council, said it's premature to worry about double payments when NYISO hasn't finalized the details of the carbon adder.
"This issue will eventually need to be worked out one way or another, and I would be shocked if the state signed onto a policy that provides double payments to resources," he said by email. "But it's unrealistic to expect a blanket order from the PSC tying their own hands when they don't even have firm details of the carbon adder."
https://www.eenews.net/energywire/2018/07/10/stories/1060088625

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D.C. Circuit Rejects Claims of FERC Bias

Jul 10, 2018 | E&E Greenwire

By Ellen M. Gilmer

Federal judges rejected a sweeping lawsuit today from environmentalists who say federal regulators are fundamentally biased in favor of pipelines.
In a unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit rebuffed arguments from the Delaware Riverkeeper Network that the Federal Energy Regulatory Commission's funding structure encourages it to approve interstate natural gas projects.
President Trump's first and only appointee to the D.C. Circuit, Judge Gregory Katsas, wrote the opinion.
"Regardless of whether any protected liberty or property interests are implicated, the Commission is not a structurally biased adjudicator," he wrote, adding that FERC's use of "tolling orders" to give itself more time to consider rehearing requests is not unconstitutional.
A win for the Pennsylvania-based environmental group could have triggered a big shift in funding and operations at FERC and other federal agencies that rely on outside fees.
The Delaware Riverkeeper Network raised its original lawsuit in federal district court in 2016, taking aim at how FERC is funded. As set out in the Omnibus Budget Reconciliation Act of 1986, FERC relies on fees and annual charges from natural gas companies to cover the cost of the agency's natural gas program.
Environmentalists say that system creates a rubber-stamp effect, in which FERC continues to approve pipelines in order to maintain future funding for its program. The district court threw out the case in 2017, and the Delaware Riverkeeper Network appealed to the D.C. Circuit.
FERC lawyers have maintained that no "structural bias" exists because revenue from natural gas companies ends up at the U.S. Treasury, and FERC's budget is set independently by Congress.
The court agreed, noting that funding is not tied to individual pipeline approvals.
Today's decision also rejected the notion that Pennsylvania's unique "environmental rights amendment" creates a federal property right. The Delaware Riverkeeper Network had argued that the state law should apply to this case because the underlying legal challenge involved the PennEast natural gas pipeline, which would cut through Pennsylvania and New Jersey.
The three-judge panel was skeptical of the environmental group during oral arguments in March, with Senior Judge Harry Edwards saying it seemed "utterly unrealistic" that FERC officials would feel pressured to approve projects to ensure future funding (Energywire, March 23). Judge Thomas Griffith, a George W. Bush appointee, also sat on the panel.
A lawyer for Riverkeeper didn't immediately respond to a request for comment.
https://www.eenews.net/greenwire/2018/07/10/stories/1060088667

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Report: Human Error Caused Pipeline Explosion That Killed 2 in Northern Illinois

Jul 10, 2018 | AP (In Chicago Tribune)

Federal officials say human error was the cause of a northern Illinois natural gas pipeline explosion last year that killed two men and left two others seriously injured.
Sauk Valley Media reports the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration says workers operating a tiling plow ruptured the pipeline, causing the explosion. At the time of the explosion in December, the workers were installing drainage tile.
The investigation determined the owner of the land did not contact the Joint Utility Locating Information for Excavators before beginning the tiling project.
Fifty-nine-year-old Rory Miller of Amboy and his son, 30-year-old Ryan of Oregon, were killed by the blast. Kyler Ackland of West Brooklyn and Michael Koster of Sterling were injured.
The Millers had farmed the leased land for decades.
http://www.chicagotribune.com/news/nationworld/midwest/ct-illinois-pipeline-explosion-20180710-story.html

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Chemical Security News

DOE to Seek Comments on Critical Power Infrastructure

Jul 10, 2018 | E&E Energywire

By Rod Kuckro

The Department of Energy will soon publish proposed regulations outlining how it plans to "receive, hold and share" critical electricity infrastructure information from utilities, a senior DOE official said yesterday.
The new rules are necessary as a complement to the Trump administration's efforts to focus on maintaining and improving the resilience of the nation's bulk power and distributions systems, said Catherine Jereza, DOE's deputy assistant secretary for transmission planning and technical assistance.
The rules will also play into the department's nascent development of a model of the North American grid to help cope with any number of deliberate or accidental threats to the nation's power supply, Jereza said at a meeting of DOE's Electricity Advisory Committee (EAC) in Arlington, Va.
Jereza came to DOE a year ago after a stint at the Edison Electric Institute where she worked on resilience issues.
She ended up delivering remarks to the EAC instead of her boss Bruce Walker, DOE's assistant secretary for electricity, who was called at the last minute to a meeting on Capitol Hill.
"What DOE needs to do is establish our own regulation for how you handle that information," Jereza said.
The electricity sector has made clear that it needs "certainty in how you're going to handle this information in confidence and what the procedures are so that the information can be protected," she said.
The proposed regulations are under review at the White House Office of Management and Budget and should be out for public comment in a month or so, she said.
The energy secretary has the authority to issues orders "for emergency measures to protect and restore reliability of defense critical electricity infrastructure," Jereza said.
But, she said, "Do we have a model that can be useful at the North American level? No we don't."
To deal with grid disruptions today, "we try to do as much coordination as we can and share information," she said.
But there "really is no way to do contingency analysis that would be way beyond" what is done now by DOE and the private sector, she said.
The model, which could take 18 to 24 months to complete, would be used to examine scenarios such as a coordinated cyber or physical attack hitting the East and West coasts at the same time, Jereza said.
The model would enable DOE to answer questions such as "what would that look like on the grid? How would you determine what the impacts would be?" she said.
The initial model will be a "static" one of the North American grid.
"But the end goal is to get it be a real-time type of model so if we're in an emergency" grid operators can react quickly, she said.
https://www.eenews.net/energywire/2018/07/10/stories/1060088623

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Transportation and Infrastructure News

Transportation Law Update: A Primer On The MCS-90 Endorsement

Jul 9, 2018 | Lexology

The MCS-90 endorsement is one means by which an interstate motor carrier can demonstrate compliance with minimum financial requirements established by federal statute and regulations. The application of this endorsement by the courts, however, has caused a great deal of confusion and debate.
Congress passed the Motor Carrier Act of 1980 (the “MCA”) which, in addition to deregulating the trucking industry and reducing barriers to entry, addressed safety issues and financial responsibility for trucking accidents.[1] The MCA mandates that a commercial motor carrier may operate only if registered to do so, and registration is contingent, in part, upon the carrier’s compliance with minimum financial responsibility requirements. Federal regulations require interstate carriers to maintain insurance or another form of surety “conditioned to pay any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance or use of motor vehicles.”[2]
The federal regulations set forth the minimum amount of financial responsibility coverage an interstate motor carrier must maintain: (1) at least $750,000 for vehicles transporting non-hazardous cargo; (2) $1 million for those transporting oil and certain hazardous substances; and (3) $5 million for other hazardous substances and radioactive materials.[3]
An interstate motor carrier can establish proof of financial responsibility in one of three ways: (1) an MCS-90 endorsement; (2) a surety bond; or (3) self-insurance.[4] Most interstate trucking companies obtain the MCS-90 endorsement, which was designed to eliminate the possibility of a coverage denial based on limiting provisions in the policy. The endorsement is only required when an insurance policy is used to satisfy the MCA.[5]
Courts generally consider an insurer’s obligation under the MCS-90 endorsement as “one of a surety rather than a modification of the underlying policy.”[6] This is key to understanding application of the MCS-90, which is “a safety net in the event other insurance is lacking.”[7] The Tenth Circuit has explained that “an MCS-90 insurer’s duty to pay a judgment arises not from any insurance obligation, but from the endorsement’s language guaranteeing a source of recovery in the event the motor carrier negligently injures a member of the public on the highways.”[8]
Accordingly, the surety obligation of the MCS-90 endorsement is “one that is triggered only when (1) the underlying insurance policy to which the endorsement is attached does not otherwise provide coverage, and (2) either no other insurer is available to satisfy the judgment against the motor carrier, or the motor carrier’s insurance coverage is insufficient to satisfy the federally-prescribed minimum levels of financial responsibility.”[9] Once the federally-mandated minimum financial amounts have been satisfied, the endorsement does not apply.[10]
It is important to note that the MCS-90 does not address disputes between the insured and the insurer and, as such, “does not impose a duty to defend on the insurer where such a duty would not have otherwise existed.”[11] The Fifth Circuit has explained:
[T]he MCS-90 leaves unaffected any provisions of the Policy that do not impact the insurer’s duty to compensate injured members of the public…[A]lthough the MCS-90 itself does not impose a duty to defend upon the insurer, neither does it negate such a duty that might fall upon the insurer under the Policy as interpreted according to state law.[12]
The majority of circuits also hold that the MCS-90 endorsement does not affect the obligations between joint insurers.[13] “The rationale behind the majority view is that the purpose of the MCS-90 endorsement, like the [MCA], is to protect the public, and therefore, the MCS-90 endorsement does not control the allocation of loss among insurers.”[14] As the Fifth Circuit explained:
[The MCS-90] endorsement accomplishes its purpose by reading out only those clauses in the policy that would limit the ability of a third party victim to recover for his loss. But there is no need for or purpose to be served by this supposed automatic extinguishment of [a] clause insofar as it affects the insured or other insurers who clamor for part or all of the coverage. Instead, the MCS-90 states that “all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company.” Therefore,…if an insurer’s policy contained the [MCS-90] endorsement, it would not render the insurer primary as a matter of law. [T]he [MCS-90] endorsement is not implicated for the purpose of resolving disputes among multiple insurers over which insurer should bear the ultimate financial burden of the loss.[15]
Another issue that often arises in relation to the MCS-90 is when the amount of the endorsement exceeds the minimum financial requirements. In that case, the insurer must pay the face amount of the policy. This is based on the language in the endorsement stating that “all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company.” Because the language of the endorsement does not alter the limits of the underlying contract, the insurer can pay up to the face limit of the policy and seek reimbursement for that amount.[16]
In addition to the above, the general rule is that the MCS-90 endorsement gives the insurer the right to seek reimbursement from the insured for “any payment” the insurer is required to pay only by reason of the endorsement, which the insurer would not otherwise have to pay under the policy. Some exceptions to this rule exist, however. For instance, a California court held that a trucking company’s liability insurer was required to reimburse the injured party’s insurer for payment of uninsured motorist benefits.[17]Similarly, an Oklahoma court held that the MCS-90 is triggered when the underlying policy applies to the claim but is “grossly inadequate to cover a plaintiff’s damages.”[18]
A thorough understanding of the MCS-90 endorsement and its application is important in determining whether an insurer is on the hook for its insured when the latter injures a member of the public. Many courts have rendered contradictory opinions regarding the endorsement, adding to the confusion among insured motor carriers, their insurance carriers, and the public alike.
https://www.lexology.com/library/detail.aspx?g=647c83be-5836-4aff-8eed-e9a5bbdf2192

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Union Pacific Recognizes Safe Chemical Transporters

Jul 10, 2018 | Bulk Transporter

Union Pacific recently recognized 54 companies with its distinguished Pinnacle Award for their commitment to safely transporting chemical products.
The annual award honors customers who implement release prevention protocols, corrective action plans and have zero non-accident releases (NARs) of regulated hazardous materials shipments.
“Union Pacific’s Pinnacle Award commends customers dedicated to safety excellence, ensuring chemical shipments arrive to their destinations in the safest manner,” said Kenny Rocker, vice president and general manager for industrial products.
“We appreciate the business collaboration, preventative measures and continued focus on eliminating chemical releases during transit.”
The Pinnacle Award program has recognized Union Pacific’s hazardous materials shippers for nearly 20 years. Criteria include safe-loading techniques, shipment securement and zero NARs. NAR is an unintentional hazardous material release during rail transportation not caused by an accident.
Union Pacific’s hazardous materials safety team supports customers with joint rail safety training programs and rail car inspections.
The Pinnacle Award winners based on 2017 shipments are Aeropres Corporation, Agrium U.S. Inc., AkzoNobel, Arkema, ARLANXEO Canada, BP, CALAMCO, Cenovus Energy Marketing Services LTD, CITGO Petroleum, Coffeyville Resources, Cornerstone Chemical, E.I. du Pont de Nemours and Company, Eco Services Operations Corp., Energy Transport, LLC, EnLink Midstream, Ergon Asphalt & Emulsions, HollyFrontier, Husky Energy, Indorama Ventures Logistics LLC, INEOS Olefins and Polymers USA, INEOS Oligomers, INEOS Oxide, INEOS Styrolution America LLC, INEOS Oxide, INEOS Styrolution America LLC, INVISTA, Koppers, Inc., Marathon Petroleum, Merichem, Methanex Methanol, Mexichem Fluor, MGP Ingredients, Monsanto, Monument Chemical Houston, Nalco Champion, an Ecolab Company, NorFalco Sales, Glencore Canada Corp., NOVA Chemicals, Novus International, Inc., Odfjell Terminals (Houston) Inc., OXEA, PCS Sales USA, PeroxyChem, Phillips 66, PVS Chemicals, Reagent Chemical & Research, Inc., Ruetgers Canada, Sasol, Shintech, Sinclair Wyoming Refining Company, Solvay Chemicals, Suncor Energy Inc., Targa Resources, The Chemours Company, US Magnesium, U.S. Oil & Refining Co. and Westlake Chemical.
More information about Union Pacific's commitment to safely transport hazardous materials is available in the Operating Safelysection of its Building America Report.
http://www.bulktransporter.com/tank-fleets/union-pacific-recognizes-safe-chemical-transporters

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Environment News

Kavanaugh's Record: Climate Regs, Pipelines, LNG and More

Jul 10, 2018 | E&E Energywire

By Ellen M. Gilmer

President Trump has selected a Washington, D.C., insider as his pick to replace the retiring Justice Anthony Kennedy on the Supreme Court.
Less than two weeks after Kennedy's announcement, Trump has chosen Judge Brett Kavanaugh from the U.S. Court of Appeals for the District of Columbia Circuit as his nominee for the soon-to-be-open seat on the high court.
Experts have described the 53-year-old D.C. native as highly qualified and reliably conservative.
Judge Brett Kavanaugh. U.S. Court of Appeals for the District of Columbia Circuit/Wikipedia
"There is no one in America more qualified for this position and no one more deserving," Trump said while announcing the nomination from the East Room of the White House last night.
A D.C. Circuit judge since 2006, Kavanaugh has handled more energy and environmental cases than any other short-listers for Kennedy's seat.
His skepticism toward a number of EPA programs has won praise from industry and criticism from the environmental community. Green groups are already plotting their opposition to his nomination.
Kavanaugh's remarks during last night's announcement centered on his family, legal career and approach to deciding cases.
"My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law," he said, flanked by his wife, Ashley, and two daughters. "A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent."
Kavanaugh has the elite academic background typical of Supreme Court justices, having received both his bachelor's and law degrees from Yale University. He worked as a law clerk for two appellate judges and then clerked for Kennedy on the Supreme Court.
He was considered a rising star in D.C. conservative circles in late 1990s and early 2000s, helping to author the "Starr Report" that called for President Clinton's impeachment and later working in the George W. Bush White House.Energy and environmental law chops
Kavanaugh has the lengthiest record on energy and environmental issues of all Trump's finalists for Kennedy's seat. The D.C. Circuit frequently hears cases dealing with EPA, the Federal Energy Regulatory Commission and other agencies, and the court often has the final say on key environmental law questions.
Kavanaugh has weighed in on dozens of high-profile environmental cases, including litigation over the Obama administration's landmark Clean Power Plan. Though the appeals court never issued an opinion in that case, Kavanaugh made his position clear during marathon oral arguments in 2016. He argued that the sweeping climate rule should be subject to a stricter degree of scrutiny because of its "transformative" effect.
He also argued that the urgency of climate change does not authorize EPA to exceed its authority (Energywire, Sept. 28, 2016).
"War is not a blank check," he said during arguments. "Global warming is not a blank check, either."
Kavanaugh has been reluctant to give EPA deference in other Clean Air Act litigation, too. He dissented from his colleagues in 2012 when they upheld earlier greenhouse gas regulations and dissented again when the court approved EPA standards for mercury and other hazardous air pollution from power plants.
On oil and gas issues, his experience touches on oil pipelines, natural gas exports and methane regulations.
He parted with the court's majority last summer when the D.C. Circuit smacked down the Trump administration for attempting to suspend Obama-era EPA methane standards without going through standard administrative processes. Kavanaugh would have granted a request from oil and gas industry groups to reconsider the decision.
He was also involved in important D.C. Circuit case law on how FERC considers the climate impacts of liquefied natural gas terminals. Kavanaugh joined in a unanimous 2016 opinion that found FERC's jurisdiction was limited to the LNG facilities at issue, not the actual LNG exports, which are authorized separately by the Department of Energy.
Kavanaugh also played a small role in the Dakota Access oil pipeline saga, joining his colleagues in rejecting a request by the Cheyenne River Sioux Tribe to block the flow of oil through the pipeline last year.
Kavanaugh's recent financial disclosures do not show any direct investments in the energy industry.Confirmation standoff
Now a bitter confirmation battle begins.
Environmentalists are among an Army of liberal groups already geared up for a fight.
"Polluters and corporations will love having Kavanaugh on the Supreme Court," Center for Biological Diversity attorney Bill Snape said in a statement. "The rest of us will suffer the costs for generations to come."
Earthjustice President Trip Van Noppen warned that Kavanaugh "has favored unduly limiting federal regulatory powers that are central to keeping Americans safe, and has argued for restricting the rights of people to access our court system."
As expected, conservatives quickly offered praise for Kavanaugh's nomination.
"When they are faithful to the Constitution's text and original public meaning, judges like Kavanaugh play a vital role in protecting individual rights, including freedom of speech, economic liberty, property rights, and other guarantees of freedom," Todd Gaziano of the Pacific Legal Foundation said in a statement.
Case Western Reserve University law professor Jonathan Adler wrote in a blog post last night that Kavanaugh makes federal agencies "do their homework" but is not an "anti-regulatory zealot."
"Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair," he wrote.
Supporters and opponents of Trump's pick are now expected to focus their attention on potential swing votes in the Senate: Republicans Lisa Murkowski of Alaska and Susan Collins of Maine and Democrats Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia (E&E Daily, July 9).
https://www.eenews.net/energywire/2018/07/10/stories/1060088635

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Kavanaugh Can 'Sympathize' on Climate but Questions Action

Jul 10, 2018 | E&E Climatewire

By Benjamin Hulac and Adam Aton

President Trump picked Brett Kavanaugh, a federal appeals judge with a history of challenging environmental protections, to fill the Supreme Court seat held by Justice Anthony Kennedy, the court's longtime swing vote, who will retire at the end of the month.
The nomination of Kavanaugh sets up a fierce confirmation fight in the Senate and positions Trump to lock the nation's top court into a dominantly conservative posture on dozens of issues, including climate change, for decades to come.
Trump revealed his nominee last night at a White House ceremony in the East Room, where Kavanaugh, with his wife and daughters by his side, promised to be an independent jurist unaffected by the political turbulence surrounding him.
"If confirmed by the Senate, I will keep an open mind in every case," Kavanaugh said, reading from prepared remarks.
The departure of Kennedy, who cast the deciding fifth vote in the landmark Massachusetts v. EPA climate change lawsuit in 2007, creates an opportunity for a more conservative court to dilute or even overturn climate rules. That case laid the legal groundwork for federal action to reduce greenhouse gas emissions. With Kennedy gone, Chief Justice John Roberts becomes the swing vote and a bridge to the court's liberal bloc.
Environmental advocates are promising to fight Kavanaugh's nomination, but there is little they can do to stop his confirmation. Several environmental lawyers, when reached for this story, groaned when asked about the climate implications of a court without Kennedy.
"Some people have said it could nudge the court to the right," said Glenn Sugameli, founder of Judging the Environment, which analyzes judicial nominees. "It's way worse than that."
Since 2006, Kavanaugh has served on the U.S. Court of Appeals for the District of Columbia Circuit. From that perch, he has bristled against EPA regulations. That tendency reflects his stringent views related to an agency's responsibilities when creating rules, rather than a reflex against environmental regulations, some experts said.
"He really checks the homework of regulatory agencies," said Jonathan Adler, director of Case Western Reserve University's Center for Business Law and Regulation.
"His record is of not cutting agencies any slack, and that meant that he was critical of certain Obama initiatives — but also gives reason to think he would expect the Trump EPA to do the work, as well," Adler said.
That posture was on display in August, when Kavanaugh ruled against an Obama-era EPA regulation aiming to phase out hydrofluorocarbons — greenhouse gases better known as HFCs.
"However much we might sympathize or agree with EPA's policy objectives, EPA may act only within the boundaries of its statutory authority," he wrote. "Here, EPA exceeded that authority," (Greenwire, Aug. 8, 2017).
It was also evident in 2016, when his court heard arguments over the Clean Power Plan, President Obama's signature climate policy. The appeals court has not ruled on the case, and the Trump administration has sought to water it down, yet Kavanaugh signaled that he's sympathetic to addressing climate change. But he was skeptical that EPA has the authority to limit greenhouse gases.
"Global warming isn't a blank check" for the president to regulate carbon emissions, he said during oral arguments (Climatewire, Sept. 28. 2016).
"I understand the frustration with Congress," he added. But he said the rule, rather than Congress, was "fundamentally transforming an industry."
The judge's comments in the Clean Power Plan case stood out to David Zilberberg, an environmental law expert with Davis Polk & Wardwell LLP.
Kavanaugh "seems very skeptical of any attempt" to regulate carbon dioxide emissions under Clean Air Act provisions, "or for that matter any broad based" greenhouse gas regulation without action from Congress, Zilberberg said by email.
Of the judges who made Trump's shortlist, Kavanaugh was viewed as the most troublesome for environmentalists, said Jody Freeman, the founding director of Harvard's Environmental and Energy Law Program. That reputation might be overblown, she said.
"You can't say that you always know the outcome with Brett Kavanaugh," Freeman said. "He's a very serious and very diligent judge, and he's shown himself to be persuadable."
Zach Corrigan, an attorney with Food & Water Watch, said the outgoing Kennedy was no environmental bulwark, adding that legal experts were never expecting a court with him on it to issue a sweeping climate ruling.
"Kennedy was no champion of environmental issues," Corrigan said. "No one was looking at the Supreme Court to issue the next civil rights ruling on climate change."
Kavanaugh comes with his own partisan scars. He worked in the White House for President George W. Bush. And he secured just 57 aye votes for confirmation in 2006, following a lengthy nomination process to reach his post on the appeals court that began in 2003.
"In the end, I don't think there's any way to say this is a great story for environmental interests, who are probably going to spend the next several years playing keep-away from the Supreme Court — as they have been already," Freeman said.
https://www.eenews.net/climatewire/2018/07/10/stories/1060088633

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Kavanaugh Has Deep Record of Questioning EPA Authority

Jul 10, 2018 | E&E Daily

By Amanda Reilly

President Trump tapped Brett Kavanaugh, an influential conservative judge who has had a hand in a number of consequential environmental decisions over the past dozen years, to be the next Supreme Court justice.
If confirmed, Kavanaugh would replace outgoing Justice Anthony Kennedy, who announced his retirement late last month after three decades on the high court.
"There is no one in America more qualified for this position and no one more deserving," Trump said when announcing the nomination in a prime-time event in the East Room of the White House.
Kavanaugh, who has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2006, accepted the nomination with his wife, Ashley, and daughters Margaret and Liza by his side.
He called himself "humbled" and "deeply honored."
"My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law," Kavanaugh said.
Democrats have vowed a fierce confirmation fight for the 53-year-old nominee from Maryland, who got his political start as one of the lead lawyers for independent counsel Kenneth Starr's investigation of former President Clinton. His role in the investigation, and his subsequent work for the George W. Bush administration, is likely to come up during the confirmation process.
Progressive groups and environmentalists also swiftly decried Kavanaugh's nomination, joining a rally at the Supreme Court immediately after the announcement.
"President Trump had the opportunity to nominate someone who would be fair-minded and maintain the balance of the Supreme Court," League of Conservation Voters President Gene Karpinski said.
"Unfortunately, with the nomination of Brett Kavanaugh, Trump has nominated an individual whose record shows he will side with the wealthy and powerful over the public interest."
Before his nomination was announced, some conservatives expressed concern that Kavanaugh was not conservative enough, pointing to some rulings on health care and abortion.
But Kavanaugh had barely left the East Room of the White House before conservative groups began to pour money into campaigns to boost his nomination.
The Judicial Crisis Network announced that it would spend an initial $1.4 million in support of Kavanaugh on national cable and digital ads in three states facing tight races with seats that could flip to the GOP — North Dakota, Indiana and West Virginia — and Alabama.
The group previously spent $7 million to block Merrick Garland, President Obama's Supreme Court pick, and had a $10 million campaign to support Justice Neil Gorsuch, Trump's first high court nominee.
The Koch brothers-connected Americans for Prosperity also announced a seven-figure ad campaign targeting West Virginia, North Dakota, Indiana, Florida, Missouri, Pennsylvania, Montana, Ohio, Michigan and Wisconsin.'EPA exceeded its authority' refrain
Kavanaugh comes with a deep record — more than 300 opinions and a number of dissents — on the D.C. Circuit, which will undoubtedly be picked apart by Democrats, environmentalists and other outside groups in the days and weeks to come.
Of the final four potential nominees, all of whom were deeply conservative, Kavanaugh boasted by far the most environmental law experience. He's touched almost every major environmental issue: His record includes complex air cases, Endangered Species Act challenges and highly technical Federal Regulatory Energy Commission claims.
He's seen as skeptical of expansive environmental rules and rebuffed some of the Obama administration's major air rules during his 12 years on the court. "EPA exceeded its authority" is a refrain that has appeared often in his opinions and dissents on environmental regulations.
In a 2012 dissent of a decision to rehear a case on EPA greenhouse gas regulations, for example, Kavanaugh wrote that the agency had acted counter to the Clean Air Act.
"In my view, EPA's reading of the statute was impermissible," he wrote then. "An agency cannot adopt an admittedly absurd interpretation and discard an eminently reasonable one."
In the same dissent, Kavanaugh expressed concerns about the interpretation of Massachusetts v. EPA, the landmark Supreme Court decision finding that EPA had the authority to regulate greenhouse gases.
The Supreme Court later agreed to review the D.C. Circuit's opinion, striking down portions of the rule on the grounds that EPA could force stationary facilities to obtain air permits based solely on their emissions of greenhouse gases.
In 2014, Kavanaugh also dissented from his two Democratic-appointed colleagues in finding the Obama administration failed to consider the costs of EPA's mercury and air toxics rule for power plants. The Supreme Court agreed in a 5-4 decision, sending the rule back to EPA.
He wrote majority opinions tossing out EPA's Cross-State Air Pollution Rule, vacating an EPA rule for cement kilns that shielded polluters from lawsuits for emissions during malfunctions and rejecting EPA's justification for reducing renewable fuel requirements. In the first, the Supreme Court overturned the decision, upholding the Obama-era rule. Kennedy joined the majority in the 6-2 opinion.
And in 2017, Kavanaugh wrote the majority opinion finding that the Obama EPA had exceeded its authority under the Clean Air Act with a 2015 rule that eliminated some uses of hydrofluorocarbons, which are potent greenhouse gases. Environmentalists and two chemical companies have appealed the decision to the Supreme Court.
"The takeaway message, for me, from all of these cases is that he will construe EPA authority very narrowly and virtually always, but not every single time, in favor of regulated parties and against environmental interests," Ann Carlson, an environmental law professor at UCLA, wrote last night.
If confirmed, Kavanaugh would face an early test in environmental law. The Supreme Court announced yesterday that a challenge to the critical habitat designation for the endangered dusky gopher frog would be the first case of its fall term.
But Kavanaugh's record is not always straightforward. In 2013, he signed on to an opinion finding that EPA's 2011 retroactive veto of a West Virginia mountaintop-removal mining project was legal. In 2016, however, he dissented from his colleagues in finding EPA had revoked the Clean Water Act permit "without considering the costs of doing so."All eyes turn to the Senate
Kavanaugh said he plans to begin meeting with senators today.
"I will tell each senator that I revere the Constitution," he said yesterday. "If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American rule of law."
Some Democrats said they would reserve judgment until meeting with Kavanaugh and reviewing his record.
"He's had 12 years to show what he can do and to write a lot of opinions and co-author a lot of opinions. I'm not familiar with many of them at all," said Sen. Tom Carper (D-Del.), who voted for Kavanaugh's confirmation to the D.C. Circuit in 2006 and is the top Democrat on the Senate Environment and Public Works Committee.
"I've been told that his writings on decisions that pertain to the environment are not encouraging," he said. "So I'm going to take a chance to read them."
But others, led by Minority Leader Chuck Schumer (D-N.Y.), have already announced their opposition to his nomination. Schumer slammed Kavanaugh as hostile to Roe v. Wade and said that Trump was "making good on his pledge to 'punish' women for their choices."
"I will oppose Judge Kavanaugh's nomination with everything I have, and I hope a bipartisan majority will do the same. The stakes are simply too high for anything less," Schumer said.
During the confirmation process, all eyes will be on Democrats who are facing tough re-election campaigns in red states and moderate Republicans.
Here's what some moderates had to say last night:Sen. Joe Manchin (D-W.Va.): "Just as I did when Merrick Garland and Neil Gorsuch were nominated, I will evaluate Judge Kavanaugh's record, legal qualifications, judicial philosophy and, particularly, his views on health care. ... I believe the Senate should hold committee hearings; senators should meet with him, we should debate his qualifications on the Senate floor and cast whatever vote we believe he deserves."Sen. Heidi Heitkamp (D-N.D.): "I take this job incredibly seriously, and I expect the nominee to meet with senators, have a hearing and receive a comprehensive review of his record. ... I have no doubt that many members of Congress and outside groups will announce how they stand on the nominee before doing their due diligence and instead just take a partisan stance — but that isn't how I work."Sen. Joe Donnelly (D-Ind.): "I will carefully review and consider the record and qualifications of Brett Kavanaugh."Sen. Susan Collins (R-Maine): Kavanaugh has "impressive credentials and extensive experience. ... I will conduct a careful, thorough vetting of the president's nominee to the Supreme Court, as I have done with the five previous Supreme Court justices whom I have considered."
It took three years for the Senate to confirm Kavanaugh as a judge on the D.C. Circuit. But in an interview yesterday, Sen. John Cornyn (R-Texas) said he expected the judge to be on the high court bench within a "couple months," the more typical time frame for confirming a Supreme Court justice.
Cornyn said he was optimistic that the nominee would get around 54 votes in his favor, the number that Gorsuch received last year. Manchin, Heitkamp and Donnelly all voted for Gorsuch.
"I think they'll want to be re-elected. Those three are running in red states where President Trump did well and they are going to be torn, no question," Cornyn said. "My assumption is once they voted for Neil Gorsuch, it's not a great leap" to vote for one of the other picks on Trump's short list.
Reporters George Cahlink, Nick Sobczyk and Kellie Lunney contributed.
https://www.eenews.net/eedaily/stories/1060088617/searchkeyword=Kavanaugh+has+deep+record+of+questioning+EPA+authority

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Ewire: Experts Expect Kavanaugh to 'Cabin' EPA Authority

Jul 10, 2018 | Inside EPA

Legal experts say that appellate judge Brett Kavanaugh, President Donald Trump's nominee for the Supreme Court, is likely to limit any future strict EPA regulations if they were adopted without clear statutory authorization, even if they address a problem that he acknowledges poses risks, such as climate change.
Of the finalists to replace retiring Justice Anthony Kennedy, Kavanaugh has the lengthiest judicial record regarding EPA, given that he sits on the U.S. Court of Appeals for the District of Columbia Circuit, which has original jurisdiction over many agency rules.
Given his consistent rulings against strict EPA rules -- and environmentalists seeking to force tougher standards -- environmental groups are opposing his nomination.
Michael Brune, president of the Sierra Club, told Reuters that Kavanaugh is “an extreme ideologue who has time and again proven himself hostile to common-sense environmental safeguards.”
During September 2016 oral argument over the Obama EPA's Clean Power Plan utility greenhouse gas rule -- a case in which the D.C. Circuit never issued a ruling -- Kavanaugh outlined one of his major judicial philosophies, that agencies seeking to significantly expand their power must do so with clear congressional authorization.
While climate policy is “laudable,” and there is widespread “frustration” with Congress, he said, lawmakers can “account for the people who lose their jobs” when crafting climate policy. “If we do this, we can’t.”
Harvard University law professor Jody Freeman, a former Obama White House official, told Axios that Kavanaugh might not be “so different” from Kennedy regarding major EPA rules.
"Can we expect decisions that cabin EPA somewhat? I think yes. I would expect a Justice Kavanaugh to make sure EPA and other agencies 'stay in their lane' so to speak."
As Inside EPA's David LaRoss reported in a must-read story about Trump's announcement, Kavanaugh recently authored the panel opinion in Mexichem Fluor v. EPA, et al., where a divided three-judge panel vacated a key portion of EPA's rule limiting refrigerants that act as potent GHGs.
Similarly, he wrote: “However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority.”
However, Mexichem is now the subject of a pending Supreme Court petition. Even if Kavanaugh is quickly confirmed, the justices' practice is to recuse themselves from cases they dealt with in prior posts, opening the door to a potential 4-4 split on the suit that would leave Kavanaugh's decision in place but set no nationwide precedent.
https://insideepa.com/daily-feed/ewire-experts-expect-kavanaugh-cabin-epa-authority

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Del. Loses Bid to Block Philly-Area Ozone Extension

Jul 10, 2018 | E&E Greenwire

By Sean Reilly

A federal appellate court has sided with EPA in a lawsuit challenging the agency's decision to give the Philadelphia area an extra year to meet the 2008 national ground-level ozone standard.
https://www.eenews.net/greenwire/2018/07/10/stories/1060088679

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Developers Go With the Flow as New Water Rules Kick In

Jul 10, 2018 | The Wall Street Journal

By Lara Korte

Four years ago, Elm Street Development broke ground on a 535-unit detached housing project south of Baltimore along one of the tributaries of the Chesapeake Bay including 8 miles of trails and a 40-slip marina.
Developers of such properties typically maximize the sales value of waterfront homes by building as close as possible to the water’s edge. But Elm Street’s project along Marley Creek had to comply with environmental rules enacted by the state in recent years to help save the Chesapeake Bay from ecological disaster.
Elm Street’s solution was to stagger homes closer and further away from the waterfront, with no home being closer than 1,000 feet. That preserved the natural vegetation that acts as a filter for storm water runoff.
“What we’ve tried to do at our company, and my team in Maryland, is to try and not fight the regulations as much, but to embrace and then capitalize on them,” said Karen McJunkin, regional partner at Elm Street in McLean, Va.
Real-estate developers are adapting to new environmental rules in regions of the country where critical bodies of water are becoming increasingly imperiled. Other regions where new rules have been put in place include those whose watersheds feed into Buzzards Bay in New England, the Delaware River and the Great Lakes.
The good news is that some of these efforts, along with other pollution control measures are beginning to pay off. For example, in June, the University of Maryland Center for Environmental Science issued its annual report card on the Chesapeake Bay showing improvements on aquatic grasses and blue crab population for the first time since the center has been issuing the report cards.
But environmentalists say there is still a lot of progress that needs to be made. For example, this time of year, a layer of floating algae covers parts of Buzzards Bay, making some parts so dirty “you can’t see your hand” under the water, according to Mark Rasmussen, president of the Buzzards Bay Coalition, a nonprofit organization dedicated to the preservation of the bay.
“It’s gotten worse,” said Mr. Rasmussen. “The Buzzards Bay of my childhood was rarely like this.”
Water pollution comes from a range of sources unrelated to real-estate development, including agricultural runoff and acid rain. But real-estate development contributes to the problem because impervious surfaces, such as driveways and rooftops, replace the grasses and vegetation that naturally filter out waste swept up in storm water.
Also the use of septic tanks for sewage poses a watershed threat. These single underground holding tanks can overflow and leech waste into ground water, polluting downriver bodies of water.
The alternative to a septic system is a sewer treatment system, which manages storm water and runs sewer through a multipart cleaning process before discharging it into the water.
But sewer systems are expensive, and regulations are up to municipalities, creating a piecemeal effort to clean up waste along watersheds. In areas where sewer systems are required, developers end up bearing the brunt of the cost, which gets passed onto property owners.
States have been imposing stricter requirements on sewage systems for decades. On the federal level, concerns about the health of watersheds helped prompt the creation of the Environmental Protection Agency in 1970 during the administration of President Richard Nixon.
In 1990, the EPA began a national storm water program to address runoff from municipal sewer systems. In 1999, the second phase of the EPA program required municipalities to control polluted storm water.
The Chesapeake Bay has gotten special attention. In 1997, Maryland took a comprehensive look at responsible building with its Smart Growth initiative, which worked to reduce development pressure on natural areas by encouraging development in already developed areas.
Then, in 2010, the EPA implemented what is known as the “pollution diet” for the Chesapeake Bay, requiring the states in the watershed to regulate the amount of nitrogen-polluted water discharged into the bay. Every jurisdiction came up with their own strategy to meet goals. In many counties, that meant replacing septic systems with sewers.
The EPA under President Donald Trump has been rolling back regulations. Last month, for example, The Wall Street Journal reported that the agency is trying to limit its power, established in the Clean Water Act of 1972, to pre-emptively or retroactively block U.S. Army Corps of Engineers approval of waste dumping.
That provision gave the EPA one of its most powerful tools for blocking mining or major real-estate developments. EPA Administrator Scott Pruitt, who resigned last week, was concerned that the power had a chilling effect on economic development, according to a memo written by Mr. Pruitt reviewed by The Wall Street Journal.
A spokesman for the EPA said he couldn’t comment on specifics, but said Acting Administrator Andrew Wheeler would work to forward the agenda set out by Mr. Pruitt and Mr. Trump.
Real-estate developers increasingly are finding ways to work with the new rules and still make a profit. For example, by staggering homes on its Marley Creek project, Elm Street was able to offer inland properties waterfront access, thus increasing value, Ms. McJunkin said.
“It’s a win-win,” she said.
Some developers view the changes as a positive marketing point, especially for millennial buyers, who are looking for eco-friendly properties.
“Local jurisdictions have absolutely increased laws, particularly with respect to storm water management,” said Toby Bozzuto, chief executive of Bozzuto Group, which has more than 40 developments in the Chesapeake Bay watershed. “And I don’t think that’s a bad thing whatsoever.”
https://www.wsj.com/articles/developers-go-with-the-flow-as-new-water-rules-kick-in-1531220401?mod=searchresults&page=1&pos=1

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Washington Posted First Code Red Day Since 2012 on Monday Due to ‘Unhealthy’ Pollution Levels

Jul 10, 2018 | The Washington Post

By Jason Samenow

Washington’s improving air quality in recent decades is one of its great environmental success stories. But on Monday, the pollution level climbed into the “unhealthy” range for the first time in six years, showing there is still work to be done to clean up the air.
Monday’s dirty air, rated Code Red, may come as a surprise since skies were clear and the humidity was low. But it also marked the third day in the row with hardly any wind. When the air is stagnant, pollutants tends to collect and remain in the atmosphere.
Elevated concentrations of ground-level ozone were the culprit for the unhealthy air, the Metropolitan Washington Council of Governments (COG) said. “[It] is created by chemical reactions between oxides of nitrogen and volatile organic compounds in the presence of sunlight,” the Environmental Protection Agency explains. “Emissions from industrial facilities and electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources.”
As stagnant air lingered Tuesday, the COG issued a Code Orange air quality alert, which is one step below Code Red.
Code Red alerts indicate the air is unhealthy for everyone; Code Orange alerts signify that sensitive groups, particularly children, older adults and those with respiratory issues, may experience adverse health effects.
(US EPA)
During Code Red conditions, the COG advises residents to:Turn off lights and electronics when not in use and follow tips from your electric utility about how to use less electricity to cool your home.Avoid lawn mowing or use an electric mower.Fill your vehicles’ gas tank after sunset.Take transit, carpool, or work from home.
Monday’s Code Red conditions come less than a year after Washington’s lowest summer air pollution levels in decades, when there was not a single Code Red day.
[What code red days? Washington achieves best air quality in decades.]
Pollution levels have settled at relatively low levels for the past five years — averaging 11 unhealthful Code Orange or Code Red days, compared with an average of 52 in the previous 16 years.
“We’ve seen a dramatic improvement in the region’s air quality thanks to more than a decade of action and coordination at all levels of government,” Hans Riemer, chairman of the Metropolitan Washington Air Quality Committee, said in a press release last fall. “Still, area residents continue to breathe unhealthy air too often. We must work together to continue to reduce emissions that contribute to ground-level ozone.”
https://www.washingtonpost.com/news/capital-weather-gang/wp/2018/07/10/washington-posted-first-code-red-day-since-2012-monday-due-to-unhealthy-pollution-levels/?utm_term=.a50b5aff899d

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