Preview Newsletter
AM ACC 1/23/2019
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(ACC Mentioned) Trump Tariffs and Nafta Re-Do Prompt Increase in Trade Lobbying
Jan 23, 2019 | Bloomberg
By Mark Niquette
President Donald Trump’s trade war has sparked a surge in lobbying in the fight over his tariffs. -
Common Sunscreen Ingredient Octocrylene Might Be Harmful to Coral
Jan 22, 2019 | Chemical & Engineering News
By Melissa Pandika
For the first time, researchers have shown that a common sunscreen ingredient, octocrylene, forms compounds that accumulate in coral and could impair coral metabolism at high concentrations. -
Personal Chemical Monitors: 5 Lessons for a New Tech Market Waiting to Take Off
Jan 22, 2019 | Environmental Defense Fund
By Lindsay McCormick
Emerging technology could one day make it easy for soldiers, pregnant women, flight attendants, nail salon workers, people living near industrial sites – anyone who encounters pollutants in their daily lives – to personally monitor their exposure. -
Court Backs Environmentalists' Call To Continue Lead Paint Rule Suit
Jan 22, 2019 | Inside EPA
By Maria Hegstad
A federal appellate court has agreed to environmentalists' request to continue monitoring their suit over EPA's failure to propose a rule to protect occupants of public and commercial buildings from lead exposure possible during renovation and repair activities... -
Doubting RCRA Waiver, Navy Eyes Court's PFAS Medical Monitoring Order
Jan 22, 2019 | Inside EPA
By Lara Beaven
The Navy is asking a federal appeals court to reconsider its precedential ruling allowing residents near two military facilities to pursue medical monitoring claims after they were exposed to pefluorinated compounds, arguing the court erred... -
Building Industry Must Demand Full Materials Disclosure, Says US NGO
Jan 23, 2019 | Chemical Watch
US NGO, the Healthy Building Network, has called on the building industry to demand full materials disclosure from suppliers. -
UK Issues More No-Deal Brexit Guidance on CLP, Pic
Jan 23, 2019 | Chemical Watch
The UK government has published additional guidance on UK equivalent classification labelling and packaging and prior informed consent Regulations in the event Britain leaves the EU on 29 March without a deal. -
Trump's Deregulatory Agenda in Court
Jan 23, 2019 | E&E Energywire
By Pamela King
After suspending and rescinding many of the energy regulations introduced under former President Obama, the Trump administration is in the initial stages of writing its replacement rules. -
New Ag Drops Mich.'s Challenge to EPA Mercury Regs
Jan 22, 2019 | E&E News PM
By Sean Reilly
In a noteworthy about-face, Michigan's new attorney general, Dana Nessel (D), is dropping the state's legal challenge to the underpinning of EPA's regulations on power plant emissions of mercury and other hazardous pollutants. -
Supreme Court Rejects Eminent Domain Appeal
Jan 23, 2019 | E&E Energywire
By Pamela King
The Supreme Court won't hear an eminent domain case stemming from development of the Mountain Valley pipeline. -
New Sinkhole Shuts Energy Transfer Pipeline in Pennsylvania
Jan 22, 2019 | BNA Daily Environment Report
By Leslie A. Pappas
Energy Transfer Partners’ Mariner East 1 Pipeline in Pennsylvania remained closed Jan. 22 after a new sinkhole exposed a section of the pipeline. -
Oil Giants Fight Skeptic Rep with 'Practical' Fix for CO2
Jan 23, 2019 | E&E Climatewire
By John Fialka
The third in a three-part series. Click here for the first story and here for the second. Ten of the world's biggest oil companies formed a voluntary group called the Oil and Gas Climate Initiative in September 2014. -
Admin's Top Environment Lawyer to Argue Kids' Climate Case
Jan 23, 2019 | E&E Climatewire
By Ellen M. Gilmer
The Justice Department's environment division is trotting out its top political official to argue the government's appeal in the kids' climate case. -
Democrats Seek IG Investigation of EPA's Response to ETO
Jan 22, 2019 | Inside EPA
Top Democratic senators are asking EPA's Office of the Inspector General (OIG) to investigate allegations that the agency failed to inspect facilities emitting the carcinogenic gas ethylene oxide (EtO), a request that widens Illinois senators' earlier concerns... -
House Delays Action on Doe, Grid, Cyber Bills
Jan 23, 2019 | E&E Daily
By Manuel Quiñones
House leaders are delaying action on a series of bills related to energy and cybersecurity, but a Democratic aide says they remain a priority. -
Editorial: Rail Safety Must Take a Top Priority
Jan 23, 2019 | Connecticut Post
By Editorial Board
The issue: Positive train control, a computer-based system that can stop a train traveling too fast for conditions, has been called “the most significant advancement in rail safety technology in more than a century.” -
Backers Plan Green New Deal House Resolution, Ocasio-Cortez Says (1)
Jan 23, 2019 | BNA Daily Environment Report
By Dean Scott
The Green New Deal’s most prominent backer said Jan. 22 that she and other supporters are drafting a resolution to set out exactly what climate and clean energy policies they would support to combat climate change. -
As Shutdown Drags, States See Growing Effects To Air, Water Quality Efforts
Jan 22, 2019 | Inside EPA
By Dave Reynold
State environmental regulators are growing increasingly concerned about the adverse effects of EPA's shutdown on a wide range of their operations, undermining key federal reviews of state permits and water quality measures, joint air quality planning... -
Global Warming Concerns Rise Among Americans in New Poll
Jan 22, 2019 | New York Times
By John Schwartz
A record number of Americans understand that climate change is real, according to a new survey, and they are increasingly worried about its effects in their lives today. -
Nations Should Clarify Plans to Cut Emissions for Chile Summit
Jan 22, 2019 | BNA Daily Environment Report
By Tom Azzopardi
World leaders will have to hammer out the details of how to implement plans to cut greenhouse gases when they meet in Chile next year, the host country said.
Industry and Association News
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(ACC Mentioned) Trump Tariffs and Nafta Re-Do Prompt Increase in Trade Lobbying
Jan 23, 2019 | Bloomberg
By Mark Niquette
President Donald Trump’s trade war has sparked a surge in lobbying in the fight over his tariffs.
American companies and business groups mostly opposing Trump’s tariffs closed out an active year of lobbying on trade issues in 2018. They expect a busy 2019 as the trade conflict continues and action is pending in Congress on a renegotiated deal with Mexico and Canada.
Trump’s duties on imports of steel, aluminum and Chinese goods -- as well as his threat to impose tariffs on automobiles -- plus the updated North American Free Trade Agreement were key targets of lobbying in the final three months of 2018, according to disclosure reports filed with Congress by Tuesday’s deadline.
There were at least 341 reports for the fourth quarter that included “tariff” as a specific lobbying issue, more than twice the number filed during the same period in 2017, according to posted filings. Lobbying records show aggregated spending on lobbying, rather than breaking it down by individual issues.
Hundreds of reports also listed Nafta, the metals tariffs meant to bolster U.S. producers, and the duties on Chinese imports that Trump imposed in response to a trade imbalance and allegations of unfair trade practices.
“While the White House is correct to focus on China’s unfair trade practices, tariffs are a blunt instrument that harms American consumers and our economy,” Michael Petricone, senior vice president of government and regulatory affairs for the Consumer Technology Association, said in a statement. Tariffs are costing the technology industry $1 billion a month, he said.
Trump ratcheted up the conflict in late September by imposing tariffs on an additional $200 billion worth of Chinese goods -- after hitting $50 billion in products earlier in the year -- and has threatened duties on $267 billion more. China responded with duties of its own on U.S. exports.
Read More: U.S.-China Trade War Talks: What’s Happened and What’s Next
While Trump and Chinese President Xi Jinping agreed on Dec. 1 to temporarily freeze tariffs to allow for negotiations -- delaying until March 1 a scheduled Jan. 1 increase in U.S. duties on the $200 billion in goods -- companies continued to push for exclusions from earlier levies. They also sought relief from separate duties imposed on nearly all countries’ imports of steel and aluminum and opposed tariffs on automobiles that Trump keeps threatening.
The National Retail Federation reported spending $2.5 million on lobbying in the fourth quarter, up from $1.9 million during the previous three months. Much of the increase was attributable to the group’s efforts on trade and tariffs, said David French, senior vice president of government relations.
“We increased the tempo of some of our tariff-related lobbying,” he said.
U.S., Canadian and Mexican leaders signed a renegotiated Nafta on Nov. 30, and now the push is on to get Congress to ratify it. American companies and trade groups wanted to ensure that all three countries are part of any pact -- rather than dealing with the countries separately -- and that the existing deal not be terminated before a new one is approved.
Frank Samolis, partner and co-chairman of the International Trade Group at Squire Patton Boggs, said there’s also been activity on other trade issues, including Brexit and U.S. negotiations this year on trade deals with the European Union, Japan and the U.K.
Samolis said that “2019 will be an even busier year.”
Reports show the targets of the trade lobbying included the administration and Congress, though lobbyists have said the usual approaches have provenless effective with Trump as president. They’re resorting to creative tactics such as running ads on “Fox and Friends,” which Trump is known to watch.
Besides direct lobbying of the executive branch and Congress, businesses and trade groups have been trying to get information into the public domain to influence public opinion about the negative effects of tariffs, said trade lawyer David Cohen of Sandler, Travis & Rosenberg, PA.
“Lobbying efforts throughout the year have mostly walked a thin line of trying to support the legitimate wrongs that have served as the underpinnings and justification of the tariffs while objecting vehemently to the means the president is using to accomplish his goal,” Cohen said.
The U.S. Chamber of Commerce’s lobbying efforts in the fourth quarter included laying the foundation for congressional approval of the new Nafta pact and urging the administration to remove steel and aluminum tariffs on Canada and Mexico, spokeswoman Blair Latoff Holmes said in a statement.
The American Chemistry Council and other trade groups said in their reports they lobbied on legislation that would require the president to obtain congressional approval before imposing tariffs on national security grounds, as Trump did on metals imports, and as he’s considering doing on cars and auto parts.
Legislation to limit Trump’s ability to levy duties unilaterally did not advance last year. Republican Senator Chuck Grassley of Iowa, now the Finance Committee chairman, has said he intends to review the president’s use of his authority. Bloomberg has reported that Trump is expected to urge Congress, in his State of the Union address, to expand his powers on trade.
— With assistance by Bill Allison, and Ben Brody
https://www.bloomberg.com/news/articles/2019-01-23/trump-tariffs-and-nafta-re-do-prompt-increase-in-trade-lobbying
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Common Sunscreen Ingredient Octocrylene Might Be Harmful to Coral
Jan 22, 2019 | Chemical & Engineering News
By Melissa Pandika
For the first time, researchers have shown that a common sunscreen ingredient, octocrylene, forms compounds that accumulate in coral and could impair coral metabolism at high concentrations (Anal. Chem. 2018, DOI: 10.1021/acs.analchem.8b04187).
In July 2018, Hawaii made history as the first state to ban the sale of sunscreens that contain oxybenzone or octinoxate, compounds some studies have shown could harm coral reefs. The new findings suggest other sunscreen ingredients may also warrant scrutiny and underscore the need to find alternatives that prevent skin cancer without harming aquatic life.
Didier Stien and colleagues at Sorbonne University and the French National Center for Scientific Research suspended pieces of Pocillopora damicronis coral in artificial seawater and treated them with different cosmetic ingredients at various concentrations. A week later, they prepared extracts from the coral pieces and determined the chemical structures of compounds in the extracts using fragmentation mass spectrometry. The team found the results of octocrylene treatment the most surprising.
The researchers detected 18 compounds consisting of octocrylene coupled with fatty acids. This coupling made the octocrylene more lipid soluble, enabling it to accumulate in coral tissues. They saw these compounds even at an octocrylene concentration of 5 μg/L, which is comparable to that in some aquatic environments, says Silvia Díaz-Cruz, an analytical chemist at the Spanish Council for Scientific Research not involved in the study.
The team did not see clear toxic effects at this concentration, at least over the one week of exposure in the study. But at 50 μg/L octocrylene and above, several fold higher concentrations than those detected in the environment so far, the researchers detected elevated levels of 16 acylcarnitines, metabolites that studies have correlated with malfunctions in mitochondria that impair the organelles’ ability to metabolize fatty acids.
They conclude that octocrylene is toxic at these levels and predict that it may also be toxic at environmentally relevant levels over longer exposure times.
Díaz-Cruz says other research groups, including her own, have detected octocrylene in dolphins, mussels, and other aquatic organisms, but the new findings mark the first to examine octocrylene metabolites. They also suggest these organisms are exposed to a higher environmental concentration of octocrylene than previously thought—accumulating in them not only in the form of octocrylene but also its fatty acid derivatives.
https://cen.acs.org/environment/water/Common-sunscreen-ingredient-octocrylene-might/97/web/2019/01?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+cen_latestnews+%28Chemical+%26+Engineering+News%3A+Latest+News%29
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Personal Chemical Monitors: 5 Lessons for a New Tech Market Waiting to Take Off
Jan 22, 2019 | Environmental Defense Fund
By Lindsay McCormick
Emerging technology could one day make it easy for soldiers, pregnant women, flight attendants, nail salon workers, people living near industrial sites – anyone who encounters pollutants in their daily lives – to personally monitor their exposure.
Environmental pollution kills at least 9 million people annually, underscoring our need to gain a clearer understanding of our exposure to harmful chemicals, air pollution and other contaminants.
To get there, however, we must first identify barriers and opportunities for a broad uptake of this exciting, new technology.1. Huge demand for data can spur investment
First up: There are clear signals that a market exists. Today, the military, healthcare sector, business community and consumers are all demanding new data that can help them better understand how chemical exposure affects individuals. Each have their unique technology, performance and cost preferences.
To drive innovation, we must translate this demand into increased public and private investment as well as a broad adoption of novel technologies.2. We need to rethink funding sources
Traditional public research funding for environmental health studies usually don’t support the development of exposure monitoring tools. Moreover, when such funding is made available, it generally targets development of tools that address a narrow research question that focuses on a small subset of chemicals.
It creates little incentive for the development of technologies that can measure a wider spectrum of chemical substances.
Diverse funding sources – such as crowd-funding, pre-buying agreements, lending libraries, challenge programs and venture capital – can spur technology development and uptake. Forward-looking entrepreneurs and investors could get the ball rolling.3. It requires incremental progress and risk-taking
A single technology that fulfills the demands of all users still doesn’t exist and might never. Incremental advancements will likely be more successful than trying to develop the perfect device from the get-go.
At the same time, intelligence programs like IARPA – which invests in high-risk and high-payoff research programs – teach us the importance of investors tolerating a high failure rate in technology development to be able to achieve success.
To that end, identifying and funding a specific use-case of a near-market ready technology, and showing movement towards solving an important problem in six to 24 months, may be the best balance between feasibility and risk-taking.4. NFL challenge showed value of “test beds”
Studies designed to validate or prove the efficacy of new exposure monitoring technologies are key to building confidence in these tools in the research community. Unfortunately, the pace of such studies has been slow, largely due to lack of funding.
This dynamic can present a catch-22 since slow uptake of promising new technologies due to performance concerns can stymie their development and improvement. One way to accelerate the market is through “test beds,” or a standardized set of performance tests, to allow users to compare results across different technologies.
A $100-million technology challenge by the National Football League, General Electrics and Under Armour to create a football helmet that reduces concussions is an example of such an approach. The National Institute of Standards and Technology, an NFL partner, developed a test bed to evaluate and compare prototype helmet submissions for the challenge.5. Chemical exposure data can overwhelm
Effective exposure monitoring tools must be coupled with meaningful communication about chemical exposures that is accessible and digestible. Without this step, people can become overwhelmed by such information and fail to take meaningful action to change their personal behavior or advocate for change.
So where are we with personal chemical monitoring?
Our team is working to quantify the demand for these technologies in a study due out by this spring. Our goal: to spur greater investment in new chemical monitoring technologies that will inform evidence-based policies and practices that can help all of us reduce our exposure to harmful substances.
https://www.edf.org/blog/2019/01/22/personal-chemical-monitors-5-lessons-new-tech-market-waiting-take
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Court Backs Environmentalists' Call To Continue Lead Paint Rule Suit
Jan 22, 2019 | Inside EPA
By Maria Hegstad
A federal appellate court has agreed to environmentalists' request to continue monitoring their suit over EPA's failure to propose a rule to protect occupants of public and commercial buildings from lead exposure possible during renovation and repair activities, after suggesting late last year that it terminate the decade-old case.
The U.S. Court of Appeals for the District of Columbia Circuit in a Jan. 22 order “discharged” its own motion of last December “directing parties to show cause why this case should not be administratively terminated...” Instead, the court ordered EPA to continue to file its biannual stats reports, with the next due on July 22, 2019, “and at 180-day intervals thereafter.”
The decision follows a December order from the court in the suit New York Coalition to End Lead Poisoning v. EPA, which seeks to require EPA to comply with provisions in the Toxic Substances Control Act and other laws to address lead paint hazards by a date certain.
But the suit has lingered since 2008 as EPA has struggled to develop the data needed to make its determination.
As a result, the court last month asked environmentalists and EPA to “show cause by January 11, 2019, why this case should not be administratively terminated upon the docket of the court."
The court explained that its order was based on consideration of EPA's last status update to the court, last August, in which the agency again indicated it is still working to gather data that would support decisionmaking the agency had promised to complete by March 31, 2017.
The court clerk said that termination would be without prejudice for bringing the suit back before the court. The clerk added that termination “allows the court to clear its statistical docket of older cases in which no activity before the court is expected in the near future. It also relieves the court of the need to monitor the status of such cases and the parties of the responsibility to submit periodic reports.”
While EPA did not object to the termination, environmentalists urged the court not to dismiss the case. “Petitioners respectfully request that this case not be administratively terminated. While we understand the Court’s interest in not engaging in further monitoring of the status of older cases, the status reports make clear that the Respondent is currently implementing a settlement agreement,” Thomas Neltner, attorney for the Sierra Club and the Center for Environmental Health, wrote in a Jan. 11 reply brief.
“We anticipate that with continued progress, the case should be resolved by June 2021 and possibly earlier. We wish to continue implementation of that Agreement.”
In his reply, Neltner acknowledges that the parties reached an agreement in 2009, which has been twice updated, most recently in 2015 after environmentalists sued EPA to force the agency to craft a rule intended to protect workers and occupants from lead dust exposure during renovations of public and commercial buildings. The agency completed such a rule in 2008 for homes and child care facilities built before 1978, but environmentalists are urging the agency to expand such protections to occupants of other building types. These properties are largely occupied by adults, requiring a new and separate risk analysis than that underlying the child-focused 2008 rule.
“EPA has completed many of the milestones related to this Agreement as documented in prior status reports. In particular, EPA has recently completed a major step by gathering information necessary to make the threshold determination whether renovation or remodeling activities in these buildings create lead-based paint hazards,” Neltner writes. “Petitioners believe that this information should enable the agency to make this threshold decision by the end of 2019.”
Neltner asks that “the Court should continue to require that Respondent file status reports on a semi-annual basis, as it will assist in reaching a resolution of this matter.”
EPA, by contrast, replied that “it has no objection to the administrative termination of this action as contemplated in the Court’s Order,” according to its Jan. 11 brief.
https://insideepa.com/daily-news/court-backs-environmentalists-call-continue-lead-paint-rule-suit
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Doubting RCRA Waiver, Navy Eyes Court's PFAS Medical Monitoring Order
Jan 22, 2019 | Inside EPA
By Lara Beaven
The Navy is asking a federal appeals court to reconsider its precedential ruling allowing residents near two military facilities to pursue medical monitoring claims after they were exposed to pefluorinated compounds, arguing the court erred when it found that federal waste law unequivocally waived sovereign immunity to allow such a remedy.
“The panel decision is the first to hold that [the Resource Conservation and Recovery Act (RCRA)] unequivocally waives the federal government’s sovereign immunity for state-law medical monitoring claims. Yet, like plaintiffs, the panel never grappled with statutory text that limits the scope of RCRA’s waiver. Rehearing is warranted,” the Justice Department on behalf of the Navy writes in a Jan 16 request for rehearing.
The Navy is seeking rehearing by either the entire U.S. Court of Appeals for the 3rd Circuit or the same three-judge panel of the court that issued the Oct. 2 opinion in Kristen Giovanni, et al., and Dorothy Palmer, et al. v. Navy.
“This case presents a legal question of exceptional importance because the panel’s broad reading of RCRA’s waiver permits plaintiffs to assert claims under 'environmental laws' simply by seeking 'injunctive relief.' The statutory text does not extend that far,” the Navy says.
“The Navy seeks rehearing because the panel overlooked important textual limits on the scope of RCRA’s waiver without the benefit of any serious briefing on this important issue,” explaining that the issue was not addressed by the district court and the government's brief before the 3rd Circuit only argued that plaintiffs had not explained how RCRA's waiver applied.
In the ruling, all three judges on the panel agreed with the plaintiffs that their claims, originally brought under a state law, could move forward because RCRA section 6001(a) unequivocally waives sovereign immunity to state law claims for injunctive relief.
The ruling also addressed issues of sovereign immunity under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), with Judges Kent Jordan and Anthony Scirica agreeing with a lower court that CERCLA section 113(h) barred the plaintiffs from seeking a study on the health effects of exposure to per- and polyfluoroakyl substances (PFAS). But the judges found the plaintiffs' medical monitoring claim is not a challenge under CERCLA and is not barred by sovereign immunity, and therefore remanded the case to the U.S. District Court for the Eastern District of Pennsylvania.
Judge Stephanos Bibas filed a concurring opinion that reaches most of the same conclusions as the majority but disagrees with the reasoning to determine the Giovannis' and Palmers' claims are not barred by section 113(h).
PFAS have been linked to a number of health effects including reproductive, developmental and immunological effects as well as cancer.
But EPA has been grappling with how to regulate releases of the substance and appears poised to sidestep widespread calls to develop an enforceable drinking water standard. In addition, acting EPA chief Andrew Wheeler said last week the government shutdown has delayed agency plans to release a long-awaited PFAS action plan.
In the absence of regulatory standards, many exposed parties, such as the appellants in this case, as well as state and municipal governments and others have turned to novel litigation against manufacturers and users of PFAS to recover costs for cleanup, monitoring and other activities.
'Tens of Thousands of Plaintiffs'
But defendants, like the Navy in this case, are seeking to limit the reach of such litigation and any liability that may result, arguing that it would open the door to claims by “tens of thousands of plaintiffs.”
In its petition, the Navy warns of significant adverse effects from the panel ruling, including arguing that the panel's decision is at odds with the statutory language of RCRA and that it opens the Navy to scores of medical monitoring claims in the area covered by the 3rd Circuit -- Delaware, New Jersey, Pennsylvania and the Virgin Islands.
“For agencies like the Department of Defense, engaged in ongoing cleanups at fifty-nine properties in this Circuit alone, the panel decision will subject the government to litigation that Congress did not unequivocally permit under RCRA’s waiver,” the request for rehearing says.
“Potentially tens of thousands of plaintiffs could bring medical monitoring claims just at these two naval facilities. At a minimum, rehearing is warranted because the panel left no room for factual development in the context of RCRA’s waiver.”
The panel found that the plaintiffs' request for an order requiring the Navy to fund a trust that will cover a prospective private party medical monitoring program is a request for injunctive relief. Because RCRA waives sovereign immunity claims for injunctive relief, “the Navy is not immune from suit for the costs of private party medical monitoring,” the ruling said.
But the Navy argues this only addressed one element of RCRA's waiver and ignored the other conditions. RCRA's waiver allowing plaintiffs to seek injunctive relief applies only in the context of enforcing the law's requirement “respecting control and abatement of solid waste or hazardous waste disposal and management,” the Navy says.
“'Control and abatement' are very specific forms of relief; they are not medical monitoring damages,” the Navy says.
Additionally, the waiver only applies if the Navy has jurisdiction over a “solid waste management facility or disposal site” or if the Navy “engaged in any activity” resulting in “the disposal or management of solid waste or hazardous waste,” something that the courts had not determined because the cases were dismissed at the pleadings stage, the Navy says.
Medical monitoring does not unequivocally related to control or possession of waste or have anything to do with the abatement, reduction or lessening of waste, and consequently, the 3rd Circuit should construe RCRA's waiver to favor immunity here, the Navy says.
Furthermore, requiring the Navy to pay for medical monitoring does not unequivocally qualify as a requirement related to hazardous waste disposal and management, the request for rehearing says.
The Navy says that if the court grants the request for rehearing and disagrees with the Navy's interpretation of RCRA's waiver, it can affirm the dismissal of the plaintiffs' claims on the grounds that CERCLA section 113(h) bars request for medical monitoring.
The Navy, however, is not seeking rehearing on those grounds because, the petition says, the panel's interpretation of section 113(h) does not present a legal question of exceptional importance for en banc rehearing, or require the full court to grant this petition to maintain uniformity.
The 3rd Circuit has asked the plaintiffs to respond to the Navy's request for rehearing by Feb. 8.
https://insideepa.com/daily-news/doubting-rcra-waiver-navy-eyes-courts-pfas-medical-monitoring-order
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Building Industry Must Demand Full Materials Disclosure, Says US NGO
Jan 23, 2019 | Chemical Watch
US NGO, the Healthy Building Network, has called on the building industry to demand full materials disclosure from suppliers.
Manufacturers, HBN says, can be reticent to reveal the 'secret sauce' behind their building product formulations. But, it adds: "Only through full public disclosure and assessment of contents and hazards can we identify and solve the problems – in buildings, on worksites, and in communities – created by hazardous substances in building products."
The NGO says transparency is "critical" because it can:
· enable rights and responsibilities;
· empower public health research; and
· drive both innovation and industrial transformation.
In addition, the public has a right to know "what chemicals we are being exposed to and what health hazards may be associated with those chemicals, regardless of where they are used in the supply chain".
The NGO also raises the issue of prioritising target chemicals. "Assessors cannot accurately describe exposure and risk on the basis of an individual chemical or product.
"Only with information about multiple products across multiple product categories, can the industry begin to understand which chemicals of concern are most prevalent and have the most exposure and hence warrant prioritisation for avoidance," it says.
HBN also notes that a circular economy is only achievable with disclosure of material contents. "Product manufacturers can’t implement effective closed-loop recycling without knowledge of material contents. Lacking information, manufacturers are playing a guessing game and are liable to introduce contaminants into their products that can interfere with the recycling process or ruin performance of the product."
Better material choices can be made, it said, by only selecting those that come with a Health Product Declaration (HPD). This is a standard for reporting building product content and associated health information.
https://chemicalwatch.com/73574/building-industry-must-demand-full-materials-disclosure-says-us-ngo
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UK Issues More No-Deal Brexit Guidance on CLP, Pic
Jan 23, 2019 | Chemical Watch
The UK government has published additional guidance on UK equivalent classification labelling and packaging and prior informed consent Regulations in the event Britain leaves the EU on 29 March without a deal.
For UK CLP, it set out more details for the following UK-based operators after exit day:
· manufacturers of substance/mixtures;
· importers of substance/mixtures not already on the EU/EEA market;
· downstream users, supplying mixtures already on the EU/EEA market;
· distributors, supplied with EU27 substance/mixtures; and
· distributors of substance/mixtures, supplied from within the UK.
For UK Pic, the guidance set out further details intended for:
· UK-based companies exporting chemicals listed in the Pic Regulation outside the EU;
· UK-based companies that currently only move Pic-listed chemicals within the EU single market;
· EU-based companies sending Pic-listed chemicals to the UK; and
· companies outside the EU exporting chemicals listed in Annex III of the Rotterdam Convention to the UK.
The first no-deal Brexit guidance on CLP and Pic Regulations was published in October.
On CLP, the government said it would effectively adopt the UN Globally Harmonized System (GHS) for classification and labelling of chemicals and base its regime on the existing EU one.
On Pic, it said it would establish an independent standalone regime, also known as the Export and Import of Hazardous Chemicals Regulation. This will ensure Britain can continue to meet its international obligations under the Rotterdam Convention.
The government also has also published additional guidance for the biocidal products Regulation.
https://chemicalwatch.com/73597/uk-issues-more-no-deal-brexit-guidance-on-clp-pic
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Trump's Deregulatory Agenda in Court
Jan 23, 2019 | E&E Energywire
By Pamela King
After suspending and rescinding many of the energy regulations introduced under former President Obama, the Trump administration is in the initial stages of writing its replacement rules.
As those texts are finalized, each will almost certainly be subject to legal action. Over the last two years, the courts have fielded a flurry of challenges to delays of Obama-era energy rules. This year will offer answers from the courts on the substance of President Trump's revision rules.
"It was just frenetic," Bethany Davis Noll, litigation director for New York University's Institute for Policy Integrity, said of last year's suspension challenges. "Now it will be a little less so, but the issues are going to be a lot more serious."
First up is the revision of the Bureau of Land Management's 2016 methane rule, which the Trump administration unveiled last year. The meat of other planned rollbacks, such as EPA's Clean Power Plan and methane standards, will be tested in court once those replacement rules are finalized.
Offshore, the Trump administration's efforts to retool safety regulations while opening new federal waters to leasing will be particularly controversial.
Cost-benefit analysis will likely be central to the challenges. The revised BLM methane rule, for example, came under early criticism for too heavily favoring industry savings above forgone climate benefits.
Obama's methane rule estimated that avoiding greenhouse gas emissions would result in net societal benefit — even if implementation came at a price for industry.
"The courts tend to defer to the agency's decisions, but now the courts are going to have two whole dockets pointing them in two different directions," said Susan Dudley, who led the Office of Information and Regulatory Affairs under President George W. Bush. "So what do they defer to?"
Judges tasked with reviewing the new rules will be paying special attention to the Trump administration's justification for each overhaul, she said.
"They definitely need to spend a lot of time on building the record and explaining why their approach either to the analysis or the legal or statutory requirements is clear and better than the previous administration's," Dudley said.
"If they can't do that, they will be overturned."
Here's what to expect in litigation this year over the Trump administration's regulatory repeals:
BLM methane rule
After a mess of suspension challenges targeting multiple delays of the Obama-era BLM methane rule since early 2017, the Trump administration in September locked in its own revision rule.
Democratic challengers immediately pounced (Energywire, Sept. 19, 2018).
"The Waste Rule Repeal will adversely impact Plaintiffs by increasing emissions of hazardous air pollutants and greenhouse gases, reducing royalty collections, and wasting fossil fuel resources that belong to the public," Attorneys General Xavier Becerra of California and Hector Balderas of New Mexico wrote in their complaint.
The lawsuit, filed in the U.S. District Court for the Northern District of California, rests on three critiques of the Trump revision rule: that the administration failed to provide a reasoned analysis for the overhaul, that the replacement regulation inappropriately defines oil and gas waste, and that Trump's BLM neglected to take a hard look at the climate impacts from the new rule.
Briefing in the case is set to begin this week.
Clean Power Plan
Last summer, Trump's EPA offered a first look at its proposed replacement of the Clean Power Plan, Obama's signature climate action.
A final Affordable Clean Energy (ACE) rule had been expected in March, but the ongoing government shutdown could bump out that deadline (E&E News PM, Jan. 10).
Once the replacement rule is finalized, immediate legal action is expected.
In their comments on the proposed ACE rule, 19 Democratic state attorneys general outlined their case against the Trump regulation. Among other issues, they wrote, the ACE rule undercuts previous statements from EPA that climate action can succeed only if the agency takes meaningful steps to curb carbon dioxide emissions from power plants.
Trump administration officials have said the ACE rule takes care of concerns that the Clean Power Plan was an overstep of EPA's authority.
The Supreme Court in 2016 iced the Obama-era rule.
EPA methane rule
As with the ACE rule, the thrust of EPA's revised methane rule will not be subject to legal action until the regulation is finalized.
Opponents of the Trump White House's regulatory machinations have already hinted at a courtroom bloodbath.
"That is insane," then-California Gov. Jerry Brown (D) said after EPA released its proposed rule to replace the Obama administration's New Source Performance Standards (Greenwire, Sept. 11, 2018). "It borders on criminality."
EPA has said it plans to finalize the rule by June.
The Trump administration tried to postpone implementation of the Obama-era standard, but the U.S. Court of Appeals for the District of Columbia Circuit struck down the delay.
Onshore royalties
A group of royalty advisers assembled by former Interior Secretary Ryan Zinke could this year propose to replace a rule that died in the early days of the Trump White House.
In its repeal of the fossil fuel valuation rule, Interior's Office of Natural Resources Revenue noted that the Royalty Policy Committee would help the federal government secure a fair value on the oil, gas and coal that is extracted from public lands.
Last fall, the group signaled that it could soon write a replacement of the valuation rule (Greenwire, Sept. 14, 2018).
Any proposal that the committee pushes through would likely be subject to legal challenges. The panel itself is already at the center of a lawsuit that alleges violations of the Federal Advisory Committee Act, which requires open meetings and public involvement.
"The rule that is likely to come out of the Royalty Policy Committee as it currently stands is likely to favor on net the fossil fuel industry," said Jayni Hein, policy director at NYU's Institute for Policy Integrity.
The royalty committee had been scheduled to hold its next meeting Jan. 31 in Phoenix, but the government shutdown appears likely to delay the gathering.
Offshore safety
Proposals to change offshore safety rules introduced in the wake of Deepwater Horizon are likely to face legal scrutiny in the coming months.
Opposition could come in the form of lawsuits over the specifics of the federal government's deregulatory actions. Interior's Bureau of Ocean Energy Management is expected to lock in its changes to the 2016 blowout preventer and well control rule by the end of the year.
Critics could also push back by challenging the Trump administration's efforts to open new parts of the U.S. outer continental shelf to offshore oil and gas development. A new draft of BOEM's five-year leasing plan had been expected this month, but the lapse in government appropriations appears to have stalled the document's release.
State attorneys general from both parties have promised to fight the administration's proposal to lease more than 90 percent of federal waters.
They have already jumped into a courtroom battle over preliminary permits to locate oil and gas deposits off the Atlantic Coast. Ten East Coast state attorneys — both Republican and Democrat — have signaled their support of the lawsuit.
Many of those same officials have pledged to sue the federal government if it proposes to drill off their state coastlines.
https://www.eenews.net/energywire/2019/01/23/stories/1060118017
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New Ag Drops Mich.'s Challenge to EPA Mercury Regs
Jan 22, 2019 | E&E News PM
By Sean Reilly
In a noteworthy about-face, Michigan's new attorney general, Dana Nessel (D), is dropping the state's legal challenge to the underpinning of EPA's regulations on power plant emissions of mercury and other hazardous pollutants.
In a Friday motion, Nessel sought to withdraw Michigan as a plaintiff in the litigation opposing EPA's "supplemental finding" that reaffirmed the agency's decision to impose the 2012 regulations on coal- and oil-fired power plants. Withdrawal is appropriate "because there is no direct claim made against Michigan in this matter and because Michigan's withdrawal will not materially prejudice the rights of the other parties," Nessel said in the motion with the U.S. Court of Appeals for the District of Columbia Circuit.
She is also pulling the state out of lawsuits challenging two other Obama-era air regulations: one that's intended to curb methane releases from the oil and gas industry and the Clean Power Plan, which targets power plants' greenhouse gas emissions, according to a news release from her office late today.
"Under my watch," Nessel said in the release, "Michigan will not be a party to lawsuits that challenge the reasonable regulations aimed at curbing climate change and protecting against exposure to mercury and other toxic substances."
Bill Schuette (R), her predecessor as attorney general, had been a leading foe of what are formally known as the Mercury and Air Toxics Standards (MATS); Michigan was the lead plaintiff in an earlier round of litigation challenging the actual standards that resulted in a 2015 Supreme Court decision that in turn led EPA to produce the supplemental finding the next year.
In that 5-4 decision, the high court let the emissions standards take effect but ruled that EPA had failed to consider compliance costs when it made an earlier determination that it was "appropriate and necessary" to limit power plant releases of mercury and toxic pollutants. In the supplemental finding released in response, the Obama-era EPA concluded that cost considerations would have made no difference. The Trump administration last month proposed to reverse that finding, saying EPA's cost-benefit analysis relies on "co-benefits" of expected reductions of pollutants not actually covered by MATS.
At EPA's request, the litigation over the supplemental finding has been in abeyance for almost two years to give the Trump administration time to reconsider its position. Nessel's motion to withdraw from the litigation was first reported by The Hill.
"I think it was a great decision," Margrethe Kearney, a senior attorney in the Michigan office of the Environmental Law and Policy Center, said in an interview. Three years ago, the nonprofit advocacy group had unsuccessfully asked Schuette to drop the case, but again flagged the issue with Nessel's transition team late last year. "It was a long time coming," Kearney said, "and it's too bad that we had to wait for a new attorney general to do that."
Nessel took office as attorney general earlier this month. Schuette, barred by term limits from running again for attorney general, lost a bid for governor. Fourteen other states, including Alabama, Ohio and Texas, remain plaintiffs in the consolidated litigation over the supplemental finding, according to court records.
https://www.eenews.net/eenewspm/2019/01/22/stories/1060118103
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Supreme Court Rejects Eminent Domain Appeal
Jan 23, 2019 | E&E Energywire
By Pamela King
The Supreme Court won't hear an eminent domain case stemming from development of the Mountain Valley pipeline.
That doesn't mean the issue is dead, petitioners said in response to the court's denial yesterday (Greenwire, Jan. 22). The Supreme Court accepts about 1 percent of cases it receives each term.
"We respect the Court's decision," wrote Mia Yugo, an attorney with Gentry Locke, in a statement yesterday. "Although the Landowners never had the chance to argue the underlying merits of their non-delegation and eminent domain arguments in court, we anticipate that these issues will be raised again one day by other Americans in similar situations, and we look forward to that day."
Yugo represents landowners affected by construction of the 300-mile Mountain Valley natural gas pipeline through West Virginia and Virginia.
Their case, Orus Ashby Berkley v. FERC, contended that the Federal Energy Regulatory Commission's natural gas pipeline authorization process violates the U.S. Constitution. The Natural Gas Act, challengers argued, improperly requires project opponents to bring their complaints to FERC before seeking judicial review at the appellate level.
In the meantime, FERC can issue "tolling orders" to delay its response to such challenges. As it stands, the process can allow pipeline developers to seize property for their projects before landowners get an opportunity to air their complaints, petitioners said.
They challenged FERC's ability to determine "public use," a key requirement for land takings.
"[B]ecause no standards were set by Congress at the time of the initial delegation of power on what constitutes 'public use,' and no checks are in place to enforce Constitutional standards, FERC has consequently created its own balancing test that measures 'public use' using a self-imposed administrative standard that violates the Fifth Amendment Takings Clause," landowners argued in their request for a Supreme Court hearing.
FERC attorneys disputed those assertions.
"This Court has repeatedly upheld similar schemes 'involving delayed judicial review of final agency actions' without any suggestion that such a scheme is constitutionally problematic," they wrote in their brief urging the court not to take up the case.
More challenges to come
Berkley won't be the last pipeline case to crop up for Supreme Court consideration.
Two other petitions — Adorers of the Blood of Christ v. FERC and Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection — are still pending (Energywire, Jan. 16).
Neither of those cases, however, deals with the specific issues at the center of Berkley.
Questions of FERC's eminent domain power are certainly still ripe at the appellate level, said David Bookbinder, chief legal counsel at the Niskanen Center.
Judges for the 4th U.S. Circuit Court of Appeals seemed somewhat amenable to the plaintiffs' arguments in Berkley, but they appeared unconvinced that FERC's procedures were resulting in irreparable harm to the landowners.
Therefore, the court did not see a compelling reason to bypass the authorization process prescribed under the Natural Gas Act, Bookbinder said.
"If you truly have a plaintiff where the loss is immediate and severe — like they're going to take your house or your land, and the land is the source of your income — I think that's the sort of case the 4th Circuit was aiming for," Bookbinder said.
https://www.eenews.net/energywire/2019/01/23/stories/1060118111
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New Sinkhole Shuts Energy Transfer Pipeline in Pennsylvania
Jan 22, 2019 | BNA Daily Environment Report
By Leslie A. Pappas
Energy Transfer Partners’ Mariner East 1 Pipeline in Pennsylvania remained closed Jan. 22 after a new sinkhole exposed a section of the pipeline.
Sunoco Pipeline LP, the pipeline operator, informed the Pennsylvania Public Utility Commission of the new sinkhole in Chester County on Jan. 20, the utility regulator said in a statement Jan. 21.
Utility regulators ordered a seven-mile stretch of the pipeline between Boot and Exton shut down for investigation. The pipeline was fully closed at 12:06 a.m. Jan. 21, the public utility commission said.
“The ME1 line is shut down across the state (no product is flowing), and the section around the incident site is being purged,” Nils Hagen-Frederiksen, a commission spokesman, told Bloomberg Environment in an email Jan. 22.
He said the PUC was monitoring Sunoco’s work to stabilize the site and the testing it is required to perform.
Sunoco Pipeline is cooperating with the investigation and monitoring all rights of way in the area to ensure they are safe, the company said in a statement on its website. The shutdown doesn’t affect the Mariner East 2 pipeline, which also runs through Chester County.
Mariner East 1 transports natural gas liquids from western Pennsylvania to the Marcus Hook Industrial Complex outside Philadelphia. The commission in March 2018 ordered the pipeline to shut down immediately due to dangers from sinkholes, but voted to reopen it in June.
https://news.bloombergenvironment.com/environment-and-energy/new-sinkhole-shuts-energy-transfer-pipeline-in-pennsylvania
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Oil Giants Fight Skeptic Rep with 'Practical' Fix for CO2
Jan 23, 2019 | E&E Climatewire
By John Fialka
The third in a three-part series. Click here for the first story and here for the second.
Ten of the world's biggest oil companies formed a voluntary group called the Oil and Gas Climate Initiative in September 2014. The strategy was to apply the industry's vast compendium of knowledge to reduce man-made greenhouse gas emissions. It also offered cash — up to $1 billion in investments.
But there was a gap in its early membership ranks.
Texas-based Exxon Mobil Corp., one of the world's largest publicly traded energy companies, had received an invitation but refused to join. Other U.S. majors also stayed away.
They had some history to wrestle with first. In 1992, Exxon, traditionally one of the nation's most conservative majors, helped organize a very different group, the Global Climate Coalition (GCC). It challenged the science behind climate change and opposed action to reduce emissions. The group was run by a Washington, D.C., public relations firm and, at the beginning, nearly all of the world's major oil companies were aligned in it with Exxon.
But as time wore on, and as the advance of climate change became more obvious to investors, GCC's membership dwindled. It began to disband in 2001. Ten years ago, Exxon proposed a tax on carbon emissions, but it took until this September for it to join the Oil and Gas Climate Initiative. Two other American majors came with it — Chevron Corp. and Occidental Petroleum Corp.
"The initiative [OGCI] was brand new at the time it was announced," said William Holbrook, a spokesman for Exxon, "and we just felt that we needed more detail on its objectives and the means for achieving those objectives."
Upon joining OGCI, Exxon's chairman, Darren Woods, issued a statement that foresaw no immediate diminution of oil or gas production. "Our mission is to supply energy for modern life and improve living standards around the world while minimizing impacts on the environment," he said. "This dual challenge is one of the most important issues facing society and our company."
Exxon brought a portfolio of what it calls "practical solutions" to address the rise in man-made CO2 and methane emissions. Many of them are tied to technologies that Exxon uses now.
Exxon is substantially involved in capturing CO2, purifying it and using it for enhanced oil recovery, or EOR. It's a time-honored way to produce more oil by pumping pressurized CO2 into aging oil and gas reservoirs to push more fuel out of the ground.
In an interview, Vijay Swarup, Exxon's vice president for research and development, explained how these practices might be shifted to produce lower-carbon energy. For example, EOR could be used to reduce emissions by permanently storing CO2 safely underground, or by collecting it and later reusing it in a product. One research aim, he noted, is to reduce CO2 emissions by manufacturing plastics with less energy.
Another Exxon research quest involves using existing refineries to make biofuels from algae or cellulosic plant materials, potentially resulting in lower carbon emissions, but more energy-intensive liquid fuels. They are needed to power heavy trucks and airliners — two types of vehicles that can't easily be electrified.
"We've got a long way to go," Swarup admitted.
Exxon's target is to make 10,000 barrels of these fuels a day by 2025. "That's a small volume," he said, but Exxon believes its process can scale up.
It will have to. According to the U.S. Energy Information Administration, U.S. airlines used 613 million barrels of jet fuel in 2017.
While research and development may take time, collectively the world's oil and gas industries have essential tools needed to develop and deliver more low-carbon energy, Swarup asserted. "This is as technical an industry as there is out there," he said. "It's probably the only industry that requires every discipline of science and engineering to be integrated together to get to the global scale of solutions that are needed.
"We recently joined OGCI. We need to find more ways to collaborate," Swarup said.
Exxon's involvement in the initiative overlaps at least two investigations into the firm's handling of climate-related risks. The attorneys general of Massachusetts and New York have accused the company of deceiving investors by playing up Exxon's readiness for the effects of warming and tighter regulations (Greenwire, Jan. 7).
One of the quickest ways that Exxon foresees to reduce U.S. carbon emissions is to shift more of the nation's electricity generation from coal to natural gas, of which Exxon produces a great abundance.
"The shift toward natural gas will carry tremendous benefits for consumers and the environment. Natural gas is affordable, reliable, efficient and available. It is also the least carbon-intensive of the major energy sources, emitting up to 60 percent less CO2 emissions than coal when used for electricity generation," the company notes.
The two other U.S. majors that joined OGCI with Exxon — Chevron and Occidental Petroleum — are also placing bets on producing more natural gas and eventually burying more CO2 in the gas-depleted formations underground. Chevron is currently working on developing one of the world's largest offshore gas fields in Australia, called the Gorgon Project.
In a report from Occidental in March, Vicki Hollub, its president and CEO, noted that her company is the world leader in enhanced oil recovery. "This should provide additional opportunities for Occidental in a lower-carbon future," she said recently.
OGCI selected Occidental as one of six majors to work on a first-of-its-kind research project in Teesside, an industrial area in northeast England. There, carbon capture and storage will be developed and used to bury a variety of CO2 wastes underground. The heart of the experiment is a new natural gas plant that is expected to collect CO2 from its own emissions.
Some scholars who have watched major oil and gas companies over the years wonder about their current timetables and the extent of their ambitions.
"I wouldn't say it's all for show," said David Levy, a professor of management at the University of Massachusetts, Boston. "They're putting money into low carbon technology. It's not very much money, say $100 million. Compared to what they spend on oil and gas exploration it's very small potatoes."
On the other hand, 13 of the world's oil majors are now pointed in a direction to make a reduction in greenhouse gases, which has never happened before. According to the Environmental Defense Fund, the New York-based environmental group that has waged a multiyear campaign to measure and reduce the oil and gas industry's methane emissions, the result may not be small potatoes.
The group estimates that roughly a quarter of planetary warming is driven by methane emissions, and somewhere between a quarter and a third of those are man-made emissions from the oil and gas industry. (Methane is the primary ingredient of natural gas.)
OGCI members account for 30 percent of the globe's oil and gas production, and they have agreed to cut their methane emissions by 20 percent by 2025. That would eliminate 350,000 metric tons of methane a year compared with 2017 levels. Their ambition is to work toward near zero.
Part of the challenge is whether others will follow their leadership. "They're taking positive steps, but without government regulations to make sure the rest of the market comes along, the bottom drops out," warns Ben Ratner, a senior director of EDF's business, energy and innovation team.
Ben van Beurden, the CEO of Royal Dutch Shell PLC, seems to agree that the majors can't do it alone.
"These ambitions demand huge changes from everyone. From governments, individuals and companies," he said.
https://www.eenews.net/climatewire/2019/01/23/stories/1060118133
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Admin's Top Environment Lawyer to Argue Kids' Climate Case
Jan 23, 2019 | E&E Climatewire
By Ellen M. Gilmer
The Justice Department's environment division is trotting out its top political official to argue the government's appeal in the kids' climate case.
Jeffrey Bossert Clark plans to appear before the 9th U.S. Circuit Court of Appeals later this year to urge a panel of judges to scuttle Juliana v. United States.
Clark took over DOJ's Environment and Natural Resources Division late last year after President Trump selected him for the role in 2017.
DOJ attorney Eric Grant has been the front man for much of the Trump administration's defense in the litigation, but Grant notified the 9th Circuit last night that Clark plans to argue the latest appeal himself — a relatively rare task for a division leader.
The kids' climate case has long been a priority for DOJ officials. The lawsuit, which features 21 youth plaintiffs challenging the government for its role in climate change, has repeatedly advanced in the federal court system, surprising court watchers who view the legal claims as overly ambitious and untethered to precedent.
The 9th Circuit and the Supreme Court have previously allowed the litigation to move forward while expressing great skepticism about its merits.
According to the plaintiffs, the U.S. government has violated their right to a safe climate and has failed to meet its public trust obligations to protect the climate for future generations.
The U.S. District Court for the District of Oregon, where the case was first filed, has rejected previous attempts to sideline the case but agreed in December to let the government take its complaints about the lawsuit back to the 9th Circuit (Greenwire, Dec. 27, 2018).
The appeals court is expected to hear arguments in June or July, with Clark arguing for the government.
Clark has previously served at DOJ and in private practice. He faced criticism from greens for representing BP PLC in litigation over the 2010 Deepwater Horizon oil spill (Greenwire, Nov. 1, 2018).
https://www.eenews.net/climatewire/2019/01/23/stories/1060118135
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Democrats Seek IG Investigation of EPA's Response to ETO
Jan 22, 2019 | Inside EPA
Top Democratic senators are asking EPA's Office of the Inspector General (OIG) to investigate allegations that the agency failed to inspect facilities emitting the carcinogenic gas ethylene oxide (EtO), a request that widens Illinois senators' earlier concerns relating to EtO-emitting facilities in the Chicago area.
In a Jan. 18 letter to the agency's acting IG, Sens. Tammy Duckworth (D-IL), Dick Durbin (D-IL), the Democratic whip, and Tom Carper (D-DE), the ranking Democrat on the environment committee, write that Duckworth's staff recently “received information alleging that EPA senior political appointees instructed career civil servants to avoid conducting inspections in Region 5 of facilities that emit [EtO].”
The senators note that their review of EPA's public enforcement database, known as Enforcement and Compliance History Online (ECHO), “appears to confirm EPA has failed to conduct inspections of EtO emitting facilities over the past six months across Region 5 and the Country.”
They warn that “if the lax inspection and enforcement activity is a result of politically-motivated interference overriding recommendations of career staff, that would elevate our concerns from simple poor performance to potential outright misconduct by political appointees.”
Duckworth and Durbin have been pressing Wheeler for action on EtO-emitting facilities for some months after the agency released its latest National Air Toxics Assessment (NATA) modeled data indicating an increased cancer risk from EtO releases from a Chicago-area sterilizing plant.
Last November, they urged EPA's OIG to investigate whether EPA “intentionally withheld” public release of the NATA data.
Carper joined the request for the latest OIG investigation, citing a leak of approximately 2,700 pounds of EtO from a chemical plant in New Castle, DE, that shut down the busy Delaware Memorial Bridge connecting Interstate 95 for several hours last Thanksgiving weekend.
EtO is commonly used as an intermediate to make other chemical products like detergent, antifreeze and polyester, and to sterilize medical equipment and foods, though the chemical has long been suspected of causing breast and lymph cancers.
EPA in 2016 updated its analysis of EtO's human health risks, affirming those links. The assessment recommends conservative risk values, that when combined with the NATA data show increased risk, and are expected to drive stricter regulatory standards. But industry representatives say that regulators should not impose overly stringent requirements. They argue EtO's use as a sterilizer is critical because it is the only way some medical devices can be sterilized without damaging them.
Duckworth previewed her concerns about EPA's lack of inspections in questions to acting EPA chief Andrew Wheeler during his Jan. 16 confirmation hearing, where Wheeler indicated he was unaware of the allegation, though he noted that the agency is “monitoring a number of facilities that emit [EtO], not just in your region, but across the country, we're looking at all of them”
Duckworth said that when her staff “checked the EPA's own public enforcement [website] the ECHO tool, we found no [EtO] inspection across the country in at least the last 6 months.” She asked Wheeler if he would “commit now to joining me to request that EPA OIG initiate an investigation into this public health matter?”
Wheeler replied that he would “like to talk to my staff and find out what is going on there” before making any commitments, saying the allegation is “news to me.”
Duckworth asked if Wheeler would “at least commit to issuing a document retention order to all personnel in Region 5 and promise to me that EPA will monitor all facilities in my state that emit this carcinogen?”
Wheeler agreed to issue a document retention order “if there is an issue there.”
https://insideepa.com/daily-feed/democrats-seek-ig-investigation-epas-response-eto
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House Delays Action on Doe, Grid, Cyber Bills
Jan 23, 2019 | E&E Daily
By Manuel Quiñones
House leaders are delaying action on a series of bills related to energy and cybersecurity, but a Democratic aide says they remain a priority.
The measures were on the House suspension calendar last week, but they never came up. They're not on the list of measures for debate this week.
The bills are:
· H.R. 359, from Rep. Jerry McNerney (D-Calif.), to provide for certain programs and developments at the Department of Energy concerning the cybersecurity and vulnerabilities of, and physical threats to, the electric grid.
· H.R. 360, from Rep. Bob Latta (R-Ohio), to require the secretary of Energy to establish a voluntary "Cyber Sense" program to test the cybersecurity of products and technologies intended for use in the bulk-power systems.
· H.R. 362, from Rep. Bobby Rush (D-Ill.), to make permanent a recent cybersecurity assistant secretary at DOE.
· H.R. 370, from Rep. Fred Upton (R-Mich.), to require the secretary of Energy to carry out a program relating to physical security and cybersecurity for pipelines and liquefied natural gas facilities.
An Energy and Commerce Committee aide told E&E News, "These are important, bipartisan cybersecurity bills that passed the committee by voice vote, and we believe they will move soon."
https://www.eenews.net/eedaily/2019/01/23/stories/1060118123
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Editorial: Rail Safety Must Take a Top Priority
Jan 23, 2019 | Connecticut Post
By Editorial Board
The issue: Positive train control, a computer-based system that can stop a train traveling too fast for conditions, has been called “the most significant advancement in rail safety technology in more than a century.” Numerous deadly accidents could have been avoided had the system been in place, and the federal government mandated that all rail lines have it in place by the end of 2015. Three years and hundreds of millions of dollars later, the system is lacking on far too many rail lines, including in Connecticut.
What we said: “The rail industry has badly failed to meet deadlines to implement positive train control, technology that likely would have prevented fatal accidents, and could prevent more at any time. A decade ago, Congress mandated PTC be installed by the end of 2015. It seemed like a generous deadline at the time. But most railroads are now on the eve of letting another extension expire as they ask to push off implementation to 2020. Currently, a mere 24 percent of passenger tracks have PTC that is fully operational.” Editorial, Nov. 27, 2018
What happened: Despite installing new controls that can slow a speeding train and avoid derailing on a curve or bridge, Metro-North as expected has yet to bring positive train control into full operation on its Connecticut rail lines. This is despite years of preparatory work, a $1 billion taxpayer-funded loan and growing pressure from politicians and train riders.
“They make promises and excuses, but they are behind schedule and that’s because everyone failed to insist on a stronger deadline,” Sen. Richard Blumenthal, D-Conn., said recently.
What’s next: Metro-North will now have until the end of 2020 to get the system up and running. Technically it has been installed, so there is no federal violation, though it is not yet operational. Getting it going is key to the state’s transportation future.
It’s not as though Metro-North is alone on this, with 37 of the country’s 41 railroads that are required to have the system having sought an extension. But it doesn’t make it any less important. Rail safety has never been more important as the state looks to divert more commuters off crowded highways and onto rail cars. If people don’t believe it’s safe it will be that much harder to convince them to change their routines.
A number of train accidents have made headlines in recent years, including a 2013 derailment in the Bronx that killed four people and injured 61 others. Like another in Philadelphia that was the result of excess speed, better technology on the rails could have prevented tragedy. Positive train control wouldn’t solve every problem, but it is an important step.
The technology is complicated and requires upgrades along every mile of track and in every car. There’s a reason it has taken so long to get going. But it’s past time for more excuses and delays. Metro-North must hit the deadline for positive train control and ensure the rails are as safe as they can be.
https://www.ctpost.com/opinion/article/Editorial-Rail-safety-must-take-a-top-priority-13552815.php
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Backers Plan Green New Deal House Resolution, Ocasio-Cortez Says (1)
Jan 23, 2019 | BNA Daily Environment Report
By Dean Scott
The Green New Deal’s most prominent backer said Jan. 22 that she and other supporters are drafting a resolution to set out exactly what climate and clean energy policies they would support to combat climate change.
“We are working on a resolution [that] we’ll be introducing and we’re hoping to build some co-sponsorship” among House members, Rep. Alexandria Ocasio-Cortez (D-N.Y.) said in a brief interview leaving the Capitol.
The climate resolution planned by Green New Deal backers wouldn’t be binding and is “still in [the] drafting phase,” said Ocasio-Cortez. “But we’re looking to essentially just define the scope of the Green New Deal” with the resolution.
Ocasio-Cortez also officially landed a prized slot Jan. 22 on the House Oversight and Reform Committee. The House oversight panel is expected to deeply scrutinize a range of Trump administration policies that drew little oversight under Republican control of the House over the last two years, including Trump’s roll of climate and other environmental regulations.
No word though on whether she’ll serve on the new Select Committee on the Climate Crisis. That, Ocasio-Cortez said, is still an “ongoing conversation” given the panel won’t have subpoena power or authority to move legislation. “I don’t want to be the freshman who overextends themselves into too many clubs,” she said.
The final climate panel roster was not included in the announcement from House Speaker Nancy Pelosi (D-Calif.) that assigned Democratic members to the oversight panel as well as House science, education and labor, and homeland security committees.
No Timeline for ResolutionMore than 40 House Democrats back the Green New Deal concept, many of them freshman members who helped the party capture control of the chamber but also some senior members, including House Rules Committee Chairman Jim McGovern (D-Mass.).
The deal calls for moving the U.S. to 100 percent renewable energy in a decade, a widespread move to green jobs, and other steps to combat what supporters say is a climate crisis that demands action.
Ocasio-Cortez offered no timeline for the climate resolution but said it will ensure “that we can all get on the same page” on what policies it should include.
For example, carbon tax legislation “isn’t going to be called a Green New Deal,” she said, though “it can be part of a Green New Deal.”
“But we have to make sure we define the scope of what comprehensive Green New Deal legislation would look like.”
(Updated with announcement of House oversight roster.)
https://news.bloombergenvironment.com/environment-and-energy/backers-plan-green-new-deal-house-resolution-ocasio-cortez-says-1
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As Shutdown Drags, States See Growing Effects To Air, Water Quality Efforts
Jan 22, 2019 | Inside EPA
By Dave Reynold
State environmental regulators are growing increasingly concerned about the adverse effects of EPA's shutdown on a wide range of their operations, undermining key federal reviews of state permits and water quality measures, joint air quality planning for the upcoming wildfire season and possibly certifications for state air quality monitoring equipment.
“Our main priority right now is getting EPA back to work,” Julia Anastasio, executive director and general counsel of the Association of Clean Water Administrators (ACWA) told Inside EPA Jan. 17. She said that the shutdown's effects on states are becoming more pronounced as time passes and that permitting delays could cause economic harms.
“We're hearing more and more about actual impacts to our members,” she said, adding that in its early stages, the shutdown was largely an inconvenience, while now permits are sitting in some regional offices awaiting review. “States may need to become a little more vocal about saying, 'Hey, we need our federal partners on the field.'”
In a similar vein, Miles Keogh, executive director of the National Association of Clean Air Agencies (NACAA) tells Inside EPA the shutdown is occurring over precisely the timeframe that EPA and state air officials would ordinarily plan for the upcoming wildfire season. And that means disruption of planning to ensure that air quality monitoring equipment will be available in the right places when needed and preparing to communicate wildfire inhalation risks to the public.
“As far as I know the regions are not there to do the slow meticulous planning work,” Keogh says, adding that such work typically ramps up between now and Spring.
Keogh adds that officials are also starting to notice gaps in National Weather Service data that are needed to implement bans on prescribed burning activities -- or to lift such prohibitions -- threatening to complicate air quality and wildfire management.
If the shutdown continues much longer, Anastasio suggested states might write a letter urging lawmakers or the White House to reopen the government, though she added that such a step would come from governors or state environment commissioners.
Her comments come as the government has been shutdown for 32 days and does not appear likely to end soon as lawmakers and President Donald Trump remain at odds over how or whether to fund Trump's call for $5.7 billion to build a border wall.
The Senate is slated to vote Jan. 24 on two separate bills that could reopen the government though early reports raise doubts that either measure could reach the 60-vote threshold. One bill, backed by the White House, provides the $5.7 billion Trump is seeking along with several other immigration measures and funding for EPA and other agencies through the end of the fiscal year.
The other bill is a short-term continuing resolution (CR), which has already cleared the House, which would fund the government through Feb. 8.
But Democrats have called Trump's plan a “non-starter,” while Trump has said he will not sign the short-term CR, which is also opposed by Senate Majority Leader Mitch McConnell (R-KY).
While funding lapsed for now-shuttered agencies Dec. 21, EPA was able to continue operations on reserve funds through Dec. 28. Acting EPA chief Andrew Wheeler acknowledged last week that the shutdown has “slightly” delayed a host of agency activities.
Permit Delays
The effects on state regulatory programs appear to strike a blow to the Trump administration's push for states to take the lead in implementing federally delegated environmental laws through cooperative federalism.
As part of the effort, EPA is seeking to streamline federal reviews of state permits and permitting programs. The Environmental Council of the States (ECOS), which represents most state environment ministers, has backed streamlined reviews and highlighted the need for EPA to provide scientific and technical support for state efforts.
While the shutdown has stalled EPA regional offices' reviews of state permits, the funding lapse also has caused the agency to stop maintaining its Integrated Compliance Information System database that supports the permitting process.
Anastasio says that EPA uses the database to review compliance histories in conducting permit reviews, but that the database is not being maintained during the shutdown so analysis that may support permit reviews cannot be conducted.
In addition to permitting delays, Anastasio said that a couple of states are awaiting EPA review of newly developed state water quality criteria, but that those reviews also have stalled. The lack of water quality criteria can affect state decisions on state permitting actions which may incorporate that information.
ACWA's Anastasio and NACAA's Keogh say states are starting to feel the effects too as a result of delays in EPA policy development.
For example, Anastasio says delays in EPA rulemakings, such as planned revisions to the Obama-era Clean Water Act (CWA) jurisdiction rule, which informs states' CWA implementation, are creating uncertainty for states that could undermine planning.
As an example, Anastasio noted that some states are planning to seek, with EPA's approval, authority to issue CWA section 404 permits for the discharge of dredged or fill material in some navigable waters and adjacent wetlands.
Continued delays in EPA rules revising the CWA jurisdiction rule and modernizing the process for states to assume the CWA 404 permitting process could hamper states' ability to conduct the analysis or plan changes to support future assumption of the 404 program.
“There are a handful of states that are really interested in [404 assumption], but until they know what waters will have federal jurisdiction on them, it's hard to know what waters they'll get to retain,” or to “do the economic analysis of what it will cost them to take on this program,” Anastasio said.
Other state efforts may also be affected if the shutdown continues. For example, ACWA and the Association of State Drinking Water Administrators are planning to issue in the coming months a second iteration of their nutrient reduction progress tracker, a survey of states' nutrient reduction efforts that seeks to inform future programs.
Anastasio said the state groups may have to delay the survey, which states conduct in partnership with EPA and which relies on EPA's Office of Wastewater Management for some information.
Anastasio said it is unclear to what degree the shutdown is slowing EPA's longer-term effort to craft toxicity values for perfluorinated chemicals that states would use in efforts to address contamination from the emerging contaminants.
While EPA's Office of Research and Development the agency water office's Office of Science and Technology are seeking to craft toxicity values, the shutdown has likely slowed those efforts.
Air Quality
Meanwhile, the shutdown is having both direct and indirect effects on EPA and state and local officials charged with protecting air quality.
Separate from the wildfire issue, Keogh has cites an “upcoming concern” the need for EPA to periodically recertify equipment used by state air regulators.
Depending on the specific equipment at issue, this could affect the availability or credibility of air quality monitoring data used in state pollution control plans.
And Keogh says the shutdown has already resulted in the cancellation of a regional air quality training effort in the Pacific Northwest that was to include state and EPA officials, took a year to plan, but now cannot go forward because EPA cannot send staff to actually participate.
“What is the implication for the effectiveness of clean air agencies already operating on a shoestring?” Keogh asks, noting that participating states will have to eat the costs of canceled hotel rooms. In isolation such costs are manageable, but you also have to consider that state and local air agencies that have not seen a real increase in their federal funding since the mid 2000s, Keogh notes.
Keogh says his group is continuing to assume that several deadlines it faces to respond to EPA remain in force, and that includes launching preparations for states to comment on the agency's proposed changes to utility mercury regulation even before the rule appears in the Federal Register.
The group also recently scrambled to file comments by mid January on a plan to ease requirements for residential wood heaters after EPA denied a request for a comment extension and then shut down due to the funding lapse. A second set of comments is due roughly a month from now.
https://insideepa.com/daily-news/shutdown-drags-states-see-growing-effects-air-water-quality-efforts
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Global Warming Concerns Rise Among Americans in New Poll
Jan 22, 2019 | New York Times
By John Schwartz
A record number of Americans understand that climate change is real, according to a new survey, and they are increasingly worried about its effects in their lives today.
Some 73 percent of Americans polled late last year said that global warming was happening, the report found, a jump of 10 percentage points from 2015 and three points since last March.
The rise in the number of Americans who say global warming is personally important to them was even sharper, jumping ninepercentage points since March to 72 percent, another record over the past decade.
The survey is the latest in a series from the Yale Program on Climate Change Communication and the George Mason University Center for Climate Change Communication. It was conducted online in November and December by Ipsos, which polled 1,114 American adults.
The results suggest that climate change has moved out of the realm of the hypothetical for a wide majority of Americans, said AnthonyLeiserowitz, director of the Yale program.
“It is something that is activating an emotion in people, and that emotion is worry,” he said. The survey found that 69 percent of Americans were “worried” about warming, an eight-point increase since March.
“People are beginning to understand that climate change is here in the United States, here in my state, in my community, affecting the people and places I care about, and now,” Dr. Leiserowitz said. “This isn’t happening in 50 years, 100 years from now.”
Asked whether people in the United States were being harmed by global warming “right now,” 48 percent of the respondents agreed, an increase of nine percentage points since March. And 49 percent said they believed they would be personally harmed by global warming, a seven-point jump over the same period.
While public opinion on climate issues has fluctuated over the years, many of the recent changes were large enough to fall outside the margin of error of plus or minus three percentage points. “I’ve never seen jumps in some of the key indicators like this,” Dr. Leiserowitz said.
Americans’ growing understanding of global warming is part of a long-term trend, he said. But he attributed the recent increases to a number of extreme weather events with plausible connections to a warming planet, and to the publicity that surrounded two major scientific reports on climate change last year.
Those reports, from the United Nations’ scientific panel on climate change and the United States government, laid out grim prospects for the future if action is not taken to reduce emissions of greenhouse gases that warm the planet.
The changes in public opinion over the last year were also tied to politics, Dr. Leiserowitz said, and to the efforts of President Trump to deny the scientific evidence of climate change.
“Every time he talks about climate change he drives more media attention to the exact issue,” Dr. Leiserowitz said.
Political party affiliation is strongly associated with acceptance of the overwhelming scientific consensus on global warming, with Democrats tending to accept it and Republicans tending to reject it. But Mr. Trump’s approach to politics is so divisive, Dr. Leiserowitz said, that when he takes a strong stand on climate change and other issues, “he tends to drive a majority of the country in the opposite direction.”
In the poll, a record 62 percent of respondents understood that humans are the main cause of climate change, a four-point rise since March; those attributing it mostly to natural causes were at a record-low 23 percent, a drop of five points over the same period.
About two-thirds of those surveyed believed global warming was affecting weather in the United States, with about half saying that warming made last year’s wildfires in the West and Hurricanes Florence and Michael worse. The realm of attribution science — which studies how climate change influences individual weather events — is still evolving, but it has been well established that warming can make wildfires more frequent and hurricanes more destructive.
Disasters like these have brought once-abstract concepts home, said Katharine Hayhoe, a climate scientist at Texas Tech University who was not involved in the survey. “Today, nearly everyone can point to a way that they are personally witnessing and are being personally affected by the impacts of a changing climate in the places where they live,” she said.
Global warming and its effects are increasingly part of the nationaldiscussion, said Sunshine Menezes, an expert in climate communication at the University of Rhode Island and executive director of the Metcalf Institute for Marine and Environmental Reporting.
She noted that 41 percent of respondents in the poll said they talked about global warming with family and friends “often” or “occasionally,” and 56 percent said they heard about the topic in the news media at least once a month, a 13 percent increase since 2015. “It’s becoming harder and harder to avoid conversations about climate change,” she said.
Though it is impossible to attribute shifts in public opinion like this to any one factor, Dr. Menezes said, “I’m just thrilled that it’s happening.”
https://www.nytimes.com/2019/01/22/climate/americans-global-warming-poll.html
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Nations Should Clarify Plans to Cut Emissions for Chile Summit
Jan 22, 2019 | BNA Daily Environment Report
By Tom Azzopardi
World leaders will have to hammer out the details of how to implement plans to cut greenhouse gases when they meet in Chile next year, the host country said.
Member countries of the Paris climate deal agreed last December at the U.N. Framework Convention on Climate Change in Katowice, Poland, to a rulebook governing how the world will cut emissions. Chile’s Environment Minister Carolina Schmidt said these countries should provide clear wording and terms for implementing the rulebook.
“The rulebook is not operative,” Schmidt said at a Jan. 22 event in Santiago organized by the University of Chile, the local branch of the Corporate Leaders Group, and the World Bank. “It is like a law which needs regulations to be put into practice.”
Also speaking at the event, Ricardo Lagos, a former U.N. special envoy on climate change, said countries need to agree on how to finance actions addressing climate change, specifically, who is to pay for tackling the problem: developed countries that are largely responsible for existing emissions or the developing countries which are using more energy and creating more pollution to fuel their growing economies.
“We need to get to 2050, when the world’s population will be 9 billion, with emissions of no more than 2 kilograms per persons,” Lagos said.
Host NationChile was chosen as the location for the next Conference of the Parties, known as COP25, after Brazil’s new President Jair Bolsonaro, a climate skeptic, pulled his country out of hosting the weeklong meeting.
Originally scheduled for November, the global conference is now expected to take place in January 2020 to avoid clashes with the Asia-Pacific Economic Cooperation, which Chile also is hosting this year.
“We have proposed dates to the bureau, but we will not say anything until these have been ratified,” Schmidt said.
Agreeing on how the global carbon trading system will operate is crucial to involving the private sector in the fight against climate change, according to Schmidt.
“If we want to have effective climate action, we cannot leave out the private sector, and we have to be able to incorporate them,” the minister said.
Countries also should figure out how to integrate all the nationally determined contributions, which are the efforts of each country to reduce its emissions, into a single system with shared characteristics and deadlines in the global effort to combat global warming.
https://news.bloombergenvironment.com/environment-and-energy/nations-should-clarify-plans-to-cut-emissions-for-chile-summit
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