Preview Newsletter
PM ACC Clips Report - February 22, 2018
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(ACC Mentioned) Solid Growth Seen by Most Commodity Resins in 2018
Feb 22, 2019 | Plastics News
By Frank Esposito
For most North American commodity resins, 2018 was a good year. U.S./Canadian high and linear low density PE sales reported major growth in 2018, according to the American Chemistry Council, resulting from larger amounts of... -
(ACC Mentioned) California Could Be First State To Phase Out Single-Use Plastics
Feb 22, 2019 | LAist
By Jill Replogle
First, California taxed plastic bags. Then it curbed plastic straws. Now a group of legislators wants to completely phase out single-use plastics. It's time to get serious about this," said Assemblywoman Lorena Gonzalez Fletcher (D... -
Regulatory Developments: EPA Releases Updated TSCA Inventory
Feb 22, 2019 | National Law Review
The U.S. Environmental Protection Agency (EPA) released on February 19, 2019, an update of the Toxic Substances Control Act (TSCA) Chemical Inventory (TSCA Inventory), which lists chemicals that are “active” versus “inactive” in... -
(ACC Mentioned) EPA Stalls Review of 'Erin Brockovich' Chemical — Emails
Feb 22, 2019 | E&E - Greenwire
By Corbin Hiar
Last July, career EPA officials were set to unveil their plan to complete a long-awaited health review of the toxic metal hexavalent chromium, but more than half a year later, the plan is still under wraps — the latest delay for the human... -
Legislation Improves CA Program to Ensure Safer Products
Feb 21, 2019 | Natural Resource Defense Council
By Avinash Kar
Senator Ben Allen (D-Santa Monica), Chair of the California Senate Environmental Quality Committee, introduced Senate Bill 392 this week to help improve California’s regulation of toxic chemicals in consumer products. The bill... -
CDC Will Assess Human Exposure to Toxins in Communities near Military Bases
Feb 22, 2019 | Connecting Vets Radio
By Elizabeth Howe
The Centers for Disease Control and Prevention (CDC) announced that they will begin examining human exposure to toxic substances in communities near current or former military bases. The toxin being examined, per and... -
Chemours Shipped PFAs Substitute Chemical to South Jersey Site, EPA Says
Feb 22, 2019 | NJ Spotlight
By John Hurdle
An industrial chemical that was designed to replace toxic PFAS substances but may be just as damaging to public health was shipped into a South Jersey plant which has already been blamed for contaminating ground water with... -
Living Around Vinyl Floors, Fire-Resistant Sofas Can Be Toxic to Kids, Study Finds
Feb 22, 2019 | First Post
If you thought home decor and choice of flooring has no part to play in harming the environment, there's now a report that says otherwise. The most worrying bit of the report, however, is that the chemicals from them can be toxic for... -
FDA Moves to Update Sunscreen Regulations
Feb 22, 2019 | E&E - Greenwire
By Cecelia Smith-Schoenwalder
The Food and Drug Administration this week moved to update over-the-counter sunscreen regulations with the latest science. FDA's proposed rule, set to be published in the Federal Register on Tuesday, will "take into account modern... -
FERC Approves 1st LNG Plant in 2 Years After Ending Deadlock (1)
Feb 22, 2019 | BNA Daily Environment Report
By Rebecca Kern
The top U.S. energy regulator gave the first authorization in two years for a new liquefied natural gas export terminal, breaking an impasse that had threatened to bring approvals to a standstill. The Federal Energy Regulatory Commission... -
FERC Clears Delayed Calcasieu Pass LNG Project
Feb 22, 2019 | Houston Chronicle
By James Osborne
The Federal Energy Regulatory Commission cleared the construction of the Calcasieu Pass LNG export terminal in Louisiana Thursday, ending a two-month impasse that had threatened to delay billions of dollars worth of LNG... -
EPA Releases State Data on Chemical Spills
Feb 22, 2019 | Inside EPA
EPA is releasing for public comment states' responses to a voluntary survey on Clean Water Act (CWA) hazardous substances discharges over the past decade, part of the information the agency will use in deciding whether to finalize... -
The Energy 202: Oregon Pushes Sweeping Climate Bill After Democrats Win Big in 2018
Feb 22, 2019 | Washington Post
By Dino Grandoni
Fresh off of expanding their legislative majority in Oregon, Democrats in the state ravaged by wildfires have put forward sweeping climate legislation. The 2018 election not only replaced Republican administrations in swing... -
Congress Tries to Walk the Climate Crisis Talk
Feb 22, 2019 | Roll Call
By Katherine Tully-McManus
Staffers working for environmentally minded lawmakers are trying to walk the talk on climate change by taking small personal actions while their bosses call for big-picture policy shifts. Around Capitol Hill, several aides are aiming to... -
Are Republicans Wavering on Climate Change?
Feb 22, 2019 | Houston Chronicle
By James Osborne
For years, Republicans have questioned humans’ contribution to climate change, casting doubt on the well-established scientific conclusion that greenhouse gas emissions from burning oil and other fossil fuels is causing the planet to... -
EPA Adopts Fringe Science Claim That Small Doses of Pollution Are Healthy
Feb 22, 2019 | EcoWatch
By Sam Nickerson
The U.S. Environmental Protection Agency (EPA) in April 2018 proposed relaxing standards related to how it assesses the effects of exposure to low levels of toxic chemicals on public health. Now, correspondence obtained by the LA... -
Pay Attention to the Growing Wave of Climate Change Lawsuits
Feb 22, 2019 | Vox
By Umair Irfan
In 1998, 46 states and the District of Columbia signed on to the largest civil litigation settlement in US history, the tobacco Master Settlement Agreement. Stunning in its scope and scale, the agreement forced the four largest tobacco...
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(ACC Mentioned) Solid Growth Seen by Most Commodity Resins in 2018
Feb 22, 2019 | Plastics News
By Frank Esposito
For most North American commodity resins, 2018 was a good year.
U.S./Canadian high and linear low density PE sales reported major growth in 2018, according to the American Chemistry Council, resulting from larger amounts of new capacity being sold into the export markets as well as domestic sales that have grown at strong rates.
HDPE sales in the region were up 12 percent for the year, according to ACC, with domestic growth of more than 5 percent amplified by export sales growth of more than 42 percent. Domestic HDPE growth for 2018 was led by the pipe and conduit market, where sales surged 14 percent.
In LLDPE, 11-month sales soared more than 24 percent, with domestic sales up almost 5 percent and export sales exploding almost 96 percent. Trash and can liners led domestic LLDPE growth through November, increasing 8 percent. Full-year ACC totals for LLDPE recently were revised, but still showed growth in those end markets.
Regional sales of LDPE grew at lower rates in 2018, rising just over 7 percent. Flat domestic LDPE sales were boosted by a gain of more than 26 percent in exports. Domestic LDPE growth in 2018 was led by food packaging film, which grew more than 4 percent.
PE exports from the U.S. and Canada should remain strong in 2019, according to Esteban Sagel, principal of the Chemical & Polymer Market Consultants consulting firm in Houston.
“We’re getting additional [PE] capacity in 2019 and beyond, so we’ll see a continuation of that [export] trend,” he said. “We’ll have to be creative and ship to other countries besides China because of the tariff situation.”
Sagel added that the cost position of North American PE based on ethane from natural gas — compared to naphtha from crude oil — is an advantage for U.S. PE makers.
“There are many potential factors, including a possible crash in the price of crude oil, but none of them should be sufficiently big enough to cause that [North American] advantage to disappear,” he said.
Consumer confidence also has improved in the region, Sagel added, which should help drive domestic sales of products made from PE.
PE market analyst Paul Bjacek of Accenture Research in Houston said in an email to Plastics News that the renaissance of PE resin used to make plastics “continues to thrive on the cheap shale gas boom in the U.S.”
But he added that as PE production continues to come online from newly expanded chemical plants on the U.S. Gulf Coast, PE makers are changing their export plans.
U.S. exports of HDPE and LLDPE — both of which are under expansion in the U.S. as well as targets of China tariffs — have risen more than 50 percent since October 2016 and have more than doubled in the past five years. But Chinese tariffs have sent U.S.-made PE to rising economies in Vietnam, Malaysia and Indonesia.
Bjacek said that while this is a new trend, it may be relatively short-lived, since new PE plant expansions are expected to come online in Vietnam, Indonesia and Malaysia in the next few years, producing “stiff competition” for U.S. PE exports.
“Now, more than ever, PE producers need to maximize supply chain efficiency as cost curves may be flatter, depending on oil prices, and every bit of cost competitiveness will be needed,” Bjacek added. “They also must keep a close eye on U.S. ports, including the Port of Houston, where pressure to limit large container ships movements could hinder the flow of plastics through the port, raising the cost of moving resin.”
Impact of Chinese demand
John Richardson of petrochemicals research firm ICIS also recently commented on PE exports in his Asian Chemical Connections blog. China’s net PE imports were up around 20 percent in 2018, he wrote, with apparent demand up at least 12 percent.
“There were exceptional reasons why PE bucked the trend of a slowing [Chinese]economy… [but while] Chinese growth in 2019 could still exceed earlier expectations, it will surely moderate,” Richardson added.
The collapse in imports of scrap or recycled PE was one reason for strong 2018 Chinese PE imports, according to Richardson. This was the result of heavy restrictions on imports introduced by the Chinese government from January last year for environmental reasons.
“This led to a big surge in demand for virgin PE resins to replace scrap PE resins for low value end-use applications,” Richardson explained.
Chinese PE demand growth for 2019 is pegged at 4 percent, even in a slowing economy. The continued boom in China will have therefore increased the global PE industry’s dependence on China, Richardson said.
“This greater dependence is a major problem for U.S. producers in particular,” he added, “as they are expanding capacity during a period when the trade war threatens to block their exports to China.”
Imported PP still a factor
Full-year North American polypropylene sales were down 0.5 percent, according to ACC, with a plunge of more than 30 percent in export sales canceling out an increase of less than 0.5 percent in domestic sales. Among major end markets, sales of PP into sheet were up more than 5 percent in 2019.
But market watchers said regional PP production issues caused a large amount of the resin to be imported into North America during 2018. As a result, true North American PP consumption likely grew 3-4 percent for the year.
“The trend of imports going up happened because less material was available,” Sagel said. “We might continue to see imports.”
He added that volatility in pricing for polymer-grade propylene feedstock — which in turn causes price volatility for PP resin — “is here to stay.”
“We might see new [propylene] capacity from PDH technology,” Sagel said. “But the market still feels snug.”
Struggles for polystyrene
North American solid polystyrene sales struggled in 2018, dropping almost 5 percent through November. Exports provided a bright spot, growing more than 13 percent and reducing the impact of a 5.5 percent drop in domestic sales.
PS “continues to be burdened by a number of disadvantages…compared to competing polymers such as polyolefins,” market analyst Phil Karig said in an email to Plastics News.
Higher prices are among the structural disadvantages of PS compared to HDPE and PP, said Karig, managing director of the Mathelin Bay Associates consulting firm in St. Louis. PS also is losing market share to PP in large consumer package markets such as yogurt cups, he added, as mainly off-line thermoformed PP cups are growing for performance reasons compared to in-line, fill and seal yogurt cups made of polystyrene.
Perhaps most importantly, according to Karig, PS is often viewed as less recyclable than either PE or PP and there’s some amount of consumer confusion between expanded PS used in foam and solid PS used in cups, cutlery and other consumer products.
Looking forward, Karig said that the PS market “is very unlikely to change as long as cost, performance and consumer views all continue to be negative.”
Housing market impacts PVC
U.S./Canadian PVC sales were solid in 2018, climbing 3 percent vs. the previous year. Domestic PVC sales were flat, but the overall growth rate was bolstered by a jump of 10 percent in export sales.
Among PVC end markets, sales into pipe — which generated 46 percent of domestic demand — were flat, but sales of PVC into extruded windows and doors showed strong growth of almost 27 percent.
In spite of these up and down results, one PVC production executive told Plastics News that domestic demand seemed closer to U.S. GDP level growth of 2-3 percent during 2018.
“Construction [in the United States] has been kind of mediocre,” the executive said. “The skilled labor shortage is hurting us. We need to get into high schools and trade schools for these jobs, but that takes 3 to 4 years.”
U.S, housing starts were expected to finish 2018 at 1.26 million, up almost 5 percent vs. 2017. But projections for 2019 expect lower growth of around 1 percent. The market has recovered slowly from the recession of 2008-13, but housing starts remain well below levels of the late 1990s and early 2000s.
The construction market also has been affected by millennials not getting homes or having smaller families that don’t require large houses that use more PVC, the executive added. Many older homeowners also no longer want second homes.
Government spending on infrastructure could boost demand for PVC, the executive said. “We need infrastructure bills that cover water pipe, not just bridges and roads,” he added.
Exports to South America and Vietnam, India and other locations in Asia are expected to be strong in 2019, but, overall, the executive said North American PVC demand growth for 2019 should be right around the 2-3 percent level that’s expected of U.S. GDP.
https://www.plasticsnews.com/article/20190222/NEWS/190229962/solid-growth-seen-by-most-commodity-resins-in-2018
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(ACC Mentioned) California Could Be First State To Phase Out Single-Use Plastics
Feb 22, 2019 | LAist
By Jill Replogle
First, California taxed plastic bags. Then it curbed plastic straws. Now a group of legislators wants to completely phase out single-use plastics.
"It's time to get serious about this," said Assemblywoman Lorena Gonzalez Fletcher (D- San Diego), who is spearheading legislation targeting the use of plastics along with Senator Ben Allen (D-Santa Monica).
If passed, those bills would require the state to reduce or recycle 75 percent of single-use plastic packaging and products by 2030. In addition, manufacturers would be required to ensure that all packaging sold or distributed in California is recyclable or compostable by 2030.
Why now? Gonzalez Fletcher cited the mounting impacts of plastic waste on environmental and human health, and the loss of Asian markets for recycled plastic material.
"We have a crisis coming and we know it," she said.
Allen also noted mounting public health concerns as studies find tiny plastic particles, called microplastics, in food, soil and drinking water.
BY THE NUMBERS
Scientists estimate that 19 billion pounds of plastic waste end up in the ocean each year, severely impacting sea and bird life. If plastic production and disposal continue at the current rate, by 2050 there could be more plastic in the ocean than fish, according to the World Economic Forum
Historically at least one-third of California's recyclable material was exported to overseas markets, mostly to China, according to the state's recycling authority, CalRecycle. But China stopped accepting most material in 2017, leaving municipalities scrambling to deal with mounting waste.
Less than 15 percent of single-use plastic is recycled in California, according to Californians Against Waste. The non-profit advocacy group, which helped to craft the new legislation, notes that the value of scrap plastic is less than the cost of recycling it.
"The sad truth is," Sen. Allen said, "that so much of what we throw into (recycling) bins is not getting recycled."
While the proposed legislation would require CalRecycle to set goals and guidelines for eliminating single-use plastic, many of the details have yet to be worked out.
GETTING IT DONE
One inspiration? Rules put in place last year by the European Union. There, plastic-based products with readily-available alternatives, including cotton swabs, straws and drink stirrers, will be phased out completely. The EU policy also sets high goals for recycling items like plastic bottles.
Under pressure from consumers and environmental groups, some manufacturers and companies, including Trader Joe's, are setting their own goals for phasing out avoidable plastic. Recently, a group of major companies announced a pilot project that will allow consumers to purchase items like shampoo, orange juice and ice cream online and then return the packaging to be refilled.
Representatives of plastics industry groups were cautiously supportive of the goals of the proposed California legislation, but said they were awaiting the details. Tim Shestek, senior director for state affairs at the American Chemistry Council, said in an email that the proposal's goal of phasing out plastic waste "is consistent with the goals we set last year that 100% of plastics packaging is re-used, recycled or recovered by 2040 and that 100% of plastics packaging is recyclable or recoverable by 2030."
Scott DeFife, vice-president of government affairs for the Plastic Industries Association also said his group shares the goal of increased plastic recycling and recovery. But he said part of the reason for current, low recycling rates lies with the waste management system and consumers' access to recycling.
"Obviously, the material ending up in the environment is the worst case scenario and none of us want to see that," DeFife said. "As an industry we're working on ... how we can recover the material better, how it can be recycled better, but also end markets for the use of recycled material."
The Allen-Gonzalez plastic waste legislation is supported by numerous environmental groups, including the L.A.-based 5 Gyres Institute, Surfrider Foundation and Californians Against Waste.
SUPPORT FROM ENVIRONMENTALISTS
Mark Murray, executive director of Californians Against Waste, applauded the bill for its ambitious goals. He said consumers shouldn't be held responsible for packaging waste.
"The thrust of this legislation is to make the producers responsible for creating a circular economy when it comes to plastic packaging," he said. He noted that glass, aluminum and paper have much higher recycling rates, overall, than plastic. "If [plastic] is going to continue to exist, it's going to have to demonstrate the kind of closed loop recycling capabilities as other materials that we generate."
You can follow the path of the bill, SB-54, here.
https://laist.com/2019/02/22/california_single-use_plastics_legislation.php
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Regulatory Developments: EPA Releases Updated TSCA Inventory
Feb 22, 2019 | National Law Review
The U.S. Environmental Protection Agency (EPA) released on February 19, 2019, an update of the Toxic Substances Control Act (TSCA) Chemical Inventory (TSCA Inventory), which lists chemicals that are “active” versus “inactive” in commerce in the U.S. EPA’s News Release states that a “key result of the update is that less than half of the total number of chemicals on the current TSCA Inventory (47 percent or 40,655 of the 86,228 chemicals) are currently in commerce.” According to EPA, more than 80 percent (32,898) of the chemicals in commerce have identities that are not Confidential Business Information (CBI), increasing public access to additional information about them. For the less than 20 percent of the chemicals in commerce that have confidential identities, EPA is developing a rule outlining how it will review and substantiate all CBI claims seeking to protect the specific chemical identities of substances on the confidential portion of the TSCA Inventory.
As reported in our June 26, 2017, memorandum, “EPA Issues Final TSCA Framework Rules,” the final TSCA Inventory notification (active-inactive) rule (82 Fed. Reg. 37520 (Aug. 11, 2017) established a retrospective electronic notification of chemical substances on the TSCA Inventory that were manufactured (including imported) for nonexempt commercial purposes during the ten-year time period ending on June 21, 2016, with provision to also allow notification by processors. From August 11, 2017, through October 5, 2018, chemical manufacturers and processors provided information on which chemicals were manufactured, imported, or processed in the U.S. over the past ten years. EPA states that it received more than 90,000 responses, representing “a significant reporting effort by manufacturers, importers and processors.”
The updated TSCA Inventory includes an updated commercial activity status field designating which chemical substances are “active” in U.S. commerce, based on reporting to or in any of the following:
-2012 and 2016 Chemical Data Reporting (CDR) cycles;
-Notices of Commencement (NOC) received since June 21, 2006; and
-Notice of Activity (NOA) Form A’s received through October 5, 2018, per the final TSCA Inventory notification (active-inactive) rule.
All substances not reported as “active” are identified as “inactive.”
Next Steps
On March 13, 2019, EPA will host a webinar to assist manufacturers (including importers) and processors with future reporting requirements. Under the final TSCA Inventory notification (active-inactive) rule, a substance is not designated as an “inactive substance” until 90 days after EPA publishes the initial version of the Inventory with all listings identified as active or inactive. EPA states that manufacturers and processors should be aware that if there is a substance that is listed as “inactive” that is currently being manufactured or processed, they have 90 days to file a NOA Form B so that they can continue their current activity. Manufacturers and processors that intend to manufacture or process an “inactive” substance in the future must submit an NOA Form B before they start their activity. The webinar is scheduled for 1:00 p.m. - 4:00 p.m. (EDT) on Wednesday, March 13, 2019. The webinar will include an overview of filing a NOA Form B, a demonstration of the electronic reporting application, and time for questions and answers. Registration for the webinar is not required.
EPA will soon issue a “signed action” that the final rule stated would accompany the first version of the active/inactive Inventory. According to the final rule preamble, EPA intends to publish this signed action in a web posting on EPA’s Inventory web page (82 Fed. Reg. 37533). Ninety days from publication of the action, it will be impermissible to manufacture, import, or process a substance that is inactive without first submitting a NOA Form B. The ninety-day period is an opportunity for notification by submitters who have commenced activity on a substance that was not identified as active on one of the interim lists (e.g., if activity started after June 22, 2016).
As noted above, EPA is developing a rule outlining how it will review and substantiate all CBI claims seeking to protect the specific chemical identities of substances on the confidential portion of the TSCA Inventory.
Commentary
We commend EPA on the release of the first version of the Inventory with the identification of all active/inactive chemical listings. This has been a complex undertaking that EPA and affected industry have now brought to a timely conclusion pending the release on EPA’s Inventory web page of the “signed action” as discussed above.
The requirement in TSCA Section 8(b)(4) that EPA designate TSCA Inventory chemicals as active/inactive represents one of the important legal and policy developments to come out of the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The question of how many and which of the over 80,000 Inventory chemicals were active in commerce has been of considerable policy interest for many years. This interest sprang from the recognition that the Inventory, comprised of the chemicals in commerce as of the late 1970s as well as commenced new chemicals that were added to the Inventory since 1979, probably did not provide a good understanding of the chemicals that were actually in commerce given the passage of so much time and the development of new technologies. Readers may recall EPA’s recognition of this issue in its efforts to consider implementing an “Inventory reset” during the George W. Bush Administration. This was followed, during the Obama Administration, by years of legislative debate in Congress concerning various approaches to realizing a clear understanding of the chemicals in commerce. This effort culminated in the active/inactive Inventory requirement in amended TSCA that has now provided an answer to the longstanding question.
As indicated in EPA’s reporting on the “key result” of the updated Inventory, less than half (47 percent or 40,655) of the over 86,000 chemicals on the TSCA Inventory are currently active in commerce. This represents a profound shift over the past 40 years, as it is clear that many of the approximately 62,000 chemicals on the original Inventory and the over 30,000 commenced new chemicals were commercially bypassed as the years went by and as technologic, commercial, policy, and regulatory drivers emerged and produced significant changes in the U.S. chemical economy. Examples of these drivers include increased energy efficiency, regulatory requirements under other statutes (such as the Clean Air Act’s (CAA) regulations on volatile organic compounds (VOC), fully halogenated chlorofluorocarbons (CFC), and others), concepts such as pollution prevention and green chemistry, and the emergence of biobased products and new technologies (e.g., biotechnology and nanotechnology).
The other interesting result is the fact that only about 8,000 of the 40,000 chemicals on the active Inventory have CBI identities. While relatively few of the approximately 62,000 chemicals listed on the original Inventory had CBI identities, such claims were made on about 90 percent of the notified new chemicals, of which approximately 24,000 were commenced and added to the Inventory. Taken together, these points could indicate that former new chemicals represent only a fraction (say 8,000-10,000) of the active chemicals. Or it might indicate something else if, for example, CBI claims have been withdrawn over time from former new chemicals notified over the years.
These observations raise interesting questions such as the following:
-How many of the active chemicals come from the original Inventory versus commencement of new chemicals?
- How has the chemical makeup (e.g., Class 1, Class 2, and polymers) of the active Inventory changed relative to that in the original Inventory?
-For active new chemicals, when were they notified and introduced into commerce and what might this say generally about the commercial life of new chemicals (i.e., how many have been in commerce for decades versus the past ten years?)
We recognize that EPA is already busy implementing the changes and requirements in amended TSCA and that undertaking “optional” work presents an additional burden. We, however, believe that a basic comparative analysis of aspects such as the preceding suggestions would be of value to stakeholders and the public. We note that EPA’s release of the CDR reporting includes a basic analysis of the information and we hope that EPA will consider performing such a comparative analysis as it proceeds to implement new TSCA.
Resources
The public version of the February 2019 update of the TSCA Inventory, which includes information on active/inactive chemicals, is available on EPA’s TSCA Chemical Substance Inventory web page, as well as general information about the TSCA Inventory, tips on how to access the Inventory, and policy and guidance materials.
https://www.natlawreview.com/article/regulatory-developments-epa-releases-updated-tsca-inventory
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(ACC Mentioned) EPA Stalls Review of 'Erin Brockovich' Chemical — Emails
Feb 22, 2019 | E&E - Greenwire
By Corbin Hiar
Last July, career EPA officials were set to unveil their plan to complete a long-awaited health review of the toxic metal hexavalent chromium, but more than half a year later, the plan is still under wraps — the latest delay for the human health assessment of the anti-corrosion chemical made infamous by the 2000 film "Erin Brockovich."
The setback — revealed in emails obtained by E&E News — was part of a broader slowdown of chemical reviews ordered by EPA leadership, according to an agency source.
"We anticipate releasing a protocol on hexavalent chromium (Cr6) for public comment this June-July," Kristina Thayer, the director of EPA's Integrated Risk Information System, wrote in a March 2018 email.
The IRIS head was responding to a meeting request from Eileen Conneely, a top official at the American Chemistry Council, a trade group that represents chemical companies, including those that use or produce hexavalent chromium.
For years, ACC has pushed EPA to continue studying hexavalent chromium and other chemicals rather than publish information about their toxicity, which could lead to calls for increased public heath protections.
The Environmental Working Group, a public health advocacy organization, estimated in 2015 that dangerous levels of hexavalent chromium are found in the drinking water of more than 230 million Americans.
"Given the high level of interest in the IRIS hexavalent chromium assessment, we are planning to convene a public science webinar concurrent with the public comment period on the protocol," Thayer wrote. At that time, ACC's experts would have 10 minutes to present their research on the chemical, she explained.
ACC wasn't happy with that plan. To ensure its experts had enough time to brief EPA, Conneely asked Thayer the following month "to schedule a meeting as soon as possible with you and the IRIS staff working on the [hexavalent chromium] assessment."
But in May, Thayer rebuffed ACC's second request to meet behind closed doors with EPA researchers.
"As you can imagine with all the focus on scientific transparency at the Agency we really prefer to have science meetings occur in a public forum," she said in another email. "Perhaps it's possible that multiple 10-minute slots could be combined to give the group more time to present the overview of recent [health] publications?"
Then in June, ACC sent Thayer an overview of its research and previous attempts to present it to EPA. The IRIS director responded by reiterating her offer of multiple time slots and gave no indication at that point that the timetable had changed.
"We are currently trying to lock in a specific date and time for the public protocol meeting and will let you know as soon as one is identified," Thayer said in the exchange, which EPA released due to a Freedom of Information Act lawsuit from the Sierra Club.
That never happened, however, because the hexavalent chromium assessment — like all of IRIS's work between June 2018 and last December — got derailed by a review of chemical assessment priorities ordered by EPA leadership, according to the agency source, who spoke on condition of anonymity.
That process ended up dropping nine of 16 assessments IRIS had in the works, The Wall Street Journal reported last week, citing a draft Government Accountability Office audit.
The hexavalent chromium review is still moving forward, EPA announced at the end of that review. But now the agency doesn't plan to release the scoping documents for that assessment until the second quarter of fiscal 2019, which ends March 31.
Political leadership's review "wasn't focused on chromium, although probably chromium was a big piece of it," the EPA source said. "There was just no way they could get it off the list. It's huge, especially because it's another water issue along with PFAS."
EPA didn't immediately respond to requests for comment on the emails or source comments about the hexavalent chromium delay. But last week the agency said the draft audit the Journalobtained was "incomplete" and didn't include EPA's "extensive" pushback against its findings (Greenwire, Feb. 15).
Industry has long fought the hexavalent chromium assessment, the Center for Public Integrity reported in 2013.
Although a court in 1996 found the utility company PG&E liable for poisoning the drinking water of Hinkley, Calif., residents with hexavalent chromium — a legal victory for the real-life Erin Brockovich — EPA began studying the health effects of the chemical only in 2008.
Three years later, the agency was on the verge of making its scientists' findings official. But then in 2012, EPA bowed to industry pressure and announced it was going to wait for new studies being paid for by the chemical industry, the Center for Public Integrity reported.
Some of the same industry-tied scientists quoted by the center in 2013 appear in the recent correspondence ACC sent to Thayer. That story found Mark Harris and Deborah Proctor, two principal scientists at ToxStrategies, helped lead the industry's efforts in the 1990s to dissuade the Occupational Safety and Health Administration from setting stricter rules for airborne chromium in the workplace.
Proctor also worked to revise a 1987 study linking chromium-tainted drinking water to higher-than-normal rates of stomach cancer and influenced the makeup and findings of a California panel that downplayed the risks of hexavalent chromium, the Center reported.
"The cast of characters has not changed," said the EPA source. "It's the same players, the same strategy. Even tactically, it's all the same games."
Harris and Proctor didn't immediately respond to requests for comment, but ACC disputed that it was seeking to delay the hexavalent chromium assessment for its members' benefit.
"Contrary to the implication that industry is asking EPA leadership to block chemical assessments, the Hexavalent Chromium Panel is committed to conducting scientific research and informing EPA of the latest findings," ACC spokeswoman Sarah Jane Scruggs said, referring to a group the council has created to study the chemical. "EPA's processes require extensive internal review of chemical assessments to ensure the Agency has the science right. Our hope is that if there is any delay in releasing a draft assessment of hexavalent chromium, it is a result of EPA fully reviewing all of the recent, state-of-the-art science."
https://www.eenews.net/greenwire/2019/02/22/stories/1060122219
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Legislation Improves CA Program to Ensure Safer Products
Feb 21, 2019 | Natural Resource Defense Council
By Avinash Kar
Senator Ben Allen (D-Santa Monica), Chair of the California Senate Environmental Quality Committee, introduced Senate Bill 392 this week to help improve California’s regulation of toxic chemicals in consumer products. The bill would amend California’s innovative “green chemistry” program to improve its functioning and ensure better oversight of toxic chemicals in consumer products that we all bring into our homes every day.
Americans continue to be exposed daily to toxic chemicals in their homes—in their drinking water, in food, in household and personal care products, in furniture, and other products. Additionally, workers are exposed to toxic chemicals in job settings ranging from nail salons to oil refineries. California’s green chemistry initiative, the Safer Consumer Products Program, and its mission of making products safer and driving innovative chemistry is thus critical for protecting public health.
A recent report by the Public Health Institute (PHI) carried out a 10-year retrospective review of the program and outlined the program’s strengths and the areas where the program could use improvement. As the report shows, the Safer Consumer Products Program has tremendous promise. It is an essential component of addressing the problem of toxic chemicals up front rather than after the fact—i.e. focusing on preventing toxic exposures in the first place rather than cleaning up or fixing the effects of that exposure. It reflects an approach of asking the question of whether the use of toxic chemicals or chemicals of concern is necessary, evaluating the alternatives, and moving us towards safer chemicals and products, especially with a view to the protection of vulnerable populations.
We are very supportive of all these goals and heartened by the direction that the program is headed in: for instance, with its evaluation of stain-resistant (and toxic) “Teflon” chemicals (known as PFAS) in carpets and rugs. The program is taking on a huge category of potential exposure to a hazardous class of chemicals and looking at the whole class to ensure that we don’t end up on what we often refer to as the “toxic treadmill” where one hazardous chemical is replaced by a similar chemical, with all the attendant risks. That’s an all too familiar story.
However, in spite of some positive steps at the program, as the PHI report shows, because of a number of structural factors, the program has been unable to deliver fully on its potential. In a period of ten years, we have seen only a handful of product-chemical combinations addressed and only one that has made it all the way through the process, and even that did not result in regulatory action. Some of this is to be expected as a program gets off the ground, but it has been 10 years since the program was initiated. It is clear that structural factors play an important role as well, as the PHI report shows– and SB 392 addresses a number of these factors.
One key issue is the program’s lack of access to product ingredient data—program staff have had to resort to Google searches and unsuccessful voluntary industry requests to get information on product ingredients. The result has been long delays and hesitation to consider all the principal ingredients making a product unsafe. SB 392 provides the Department with clearer, stronger data collection authority that still preserves the trade secret protections already in the green chemistry law.
The second issue is a lack of deadlines and clear requirements for the program to outline timelines for action, which would drive transparency and accountability. The current three-year workplans the program produces are not specific enough to be meaningful, and thus facilitate the lengthy delays that have been an unfortunate feature of the program to date. In addition, the program currently doesn’t have direction to develop timelines for and to plan to address all chemicals of concern that might be used for the same purpose or function—so that the program doesn’t have to revisit the product in a few years if another problematic chemical is used to replace the initial chemical. SB 392 would require a clear articulation of timelines in the workplan and would require the consideration of all chemicals of concern that serve the same function to address these issues. These improvements will help with the prioritization process improvements that the PHI report highlights.
A third factor is the one-size-fits-all approach of requiring a new company-driven analysis to consider alternatives to the chemical under review for every manufacturer and product—even when information on alternatives is available from reliable sources. When such information is available, SB 392 creates a fast-track option that allows the agency to move faster—and proceed directly to regulation after an opportunity for public notice and public comment—is important for allowing the program to address more of the huge universe of products and chemicals on the market in a timely manner. The fast-track process could also reduce the burden on companies, especially on more resource-strapped smaller companies, which would otherwise have to conduct their own alternatives analyses.
(Finally, there is an urgent need for substantially better and more funding for the Department of Toxic Substances Control (where the program is housed) and its important mission of protecting the health of communities, including the Safer Consumer Products Program. The funding sources should be sustainable, and meet anticipated program needs. While SB 392 does not address funding, this remains an urgent need.)
With the improvements proposed in SB 392, we believe that the program can deliver on its vast potential.
https://www.nrdc.org/experts/avinash-kar/legislation-improves-ca-program-ensure-safer-products
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CDC Will Assess Human Exposure to Toxins in Communities near Military Bases
Feb 22, 2019 | Connecting Vets Radio
By Elizabeth Howe
The Centers for Disease Control and Prevention (CDC) announced that they will begin examining human exposure to toxic substances in communities near current or former military bases.
The toxin being examined, per and polyfluoroalkyl substances (PFAS), are man-made chemicals used in products like non-stick cookware, water-repellent clothing, stain-resistant fabrics — and firefighting foams used by the DoD for decades.
At elevated exposure levels, this foam can increase risks of cancer or other health issues, according to a U.S. Government Accountability Office study. Installations with elevated levels of firefighting foam chemicals span the entire country.
The assessment is expected to begin in 2019 and continue through 2020 and analyze exposure levels in eight communities:
-Berkeley County (WV) near Shepherd Field Air National Guard Base
-El Paso County (CO) near Peterson Air Force Base
-Fairbanks North Star Borough (AK) near Eielson Air Force Base
-Hampden County (MA) near Barnes Air National Guard Base
-Lubbock County (TX) near Reese Technology Center
-Orange County (NY) near Stewart Air National Guard Base
-New Castle County (DE) near New Castle Air National Guard Base
-Spokane County (WA) near Fairchild Air Force Base
Individuals from these eight communities will be randomly selected — PFAS levels will be checked via blood and urine samples.
The results of these assessments will help communities better understand the extent of their environmental exposures to PFAS.
“The assessments will generate information about exposure to PFAS in affected communities and will extend beyond the communities identified, as the lessons learned can also be applied to communities facing similar PFAS drinking water exposures. This will serve as a foundation for future studies evaluating the impact of PFAS exposure on human health,” said Patrick Breysse, Ph.D., director, CDC’s National Center for Environmental Health and the Agency for Toxic Substances and Disease Registry.
So far, investigations into this contamination have cost $200 million and identified 401 installations with known or potential chemical exposure.
https://connectingvets.radio.com/articles/cdc-assessing-toxin-exposure-communities-near-military-bases
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Chemours Shipped PFAs Substitute Chemical to South Jersey Site, EPA Says
Feb 22, 2019 | NJ Spotlight
By John Hurdle
An industrial chemical that was designed to replace toxic PFAS substances but may be just as damaging to public health was shipped into a South Jersey plant which has already been blamed for contaminating ground water with the chemical, according to a newly released report from the U.S. Environmental Protection Agency.
The EPA said the manufacturer, The Chemours Company, shipped the replacement chemical, GenX, from its factory at Fayetteville, N.C. to three U.S. facilities including its Chambers Works site at Deepwater in Salem County where testing last year showed some nearby water wells were contaminated with the chemicals. The EPA’s inspection report did not say when the shipments occurred or how much of the material was sent to the New Jersey plant.
The report was dated April 24, 2018 but not published until February 13 this year when the agency attached it to a notice accusing Chemours of violating a federal law that controls toxic substances.
“GenX Acid is shipped to Chemours Chambers Works facility in Deepwater, New Jersey,” said the heavily redacted 45-page report. The site was one of five in the U.S. and overseas that “processed” the chemical, the report said.
GenX was developed by Chemours as a substitute for PFOA, part of the PFAS group of chemicals that has contaminated public and private water supplies in many places, and is linked to some cancers, high cholesterol, low birth weights, developmental problems and other illnesses. PFOA and other PFAS chemicals are no longer made or used by U.S. manufacturers — who once used them in consumer products such as nonstick cookware and flame-retardant fabrics — but they persist in the environment because they don’t break down.
Neighboring Carneys Point sued over pollution
The Chambers Works plant has been accused of pumping more than 100 million pounds of hazardous waste into water and soil since it opened in the late 19th century. Chemours and the company that spun it off in 2015, DuPont, were sued in 2017 by the neighboring town of Carneys Point which argued that the companies had set aside less than 5 percent of the estimated $1.1 billion cost of cleaning up more than a century’s worth of pollution there. Last year, the town also sued the New Jersey Department of Environmental Protection, claiming it had excluded the community from participating in the cleanup talks.
Chemours did not answer questions on when and why the shipment took place, whether shipments are continuing, or how much of the chemical was taken to the New Jersey plant.
But it issued a statement saying that GenX, also called HFPO-Dimer Acid, is used at the Deepwater plant and does not hurt human health at low levels.
“HFPO-DA is not PFOA, as is demonstrated by its rapid elimination from the body,” the company said. “The rapid HFPO-Dimer Acid elimination means that the movement, retention and interaction with biological processes is different than those with PFOA, and that HFPO-DA does not bioaccumulate in humans the way that PFOA does.”
“There is over a decade of scientific data to support the safety profile of HFPO-Dimer Acid,” Chemours said. “These data, including numerous toxicology studies, provide compelling scientific evidence that low levels of HFPO-Dimer Acid do not pose a risk to human health.”
Company says it has ‘active’ water-sampling program
Chemours said it has an “active” water-sampling program at the Chambers Works site, and has installed carbon filters to remove PFAS compounds at a “small” number of properties where the chemicals were found in well water last year. Those homes now have drinking water that meets or exceeds DEP standards, the company said.
The company said the violations alleged by the EPA at the North Carolina and West Virginia plants took place in 2017 and that many of them have been addressed.
In November, the EPA and DEP released data from a Chemours study showing that nine private wells near the Deepwater plant contained GenX at various levels.
But in January, the DEP criticized the EPA for approving GenX and another replacement chemical without doing a full analysis of their health risks — which New Jersey officials say are similar to those of PFOA.
The DEP is expected this spring to adopt strict health standards for PFOA and PFOS after setting the nation’s first limit on PFNA, a related chemical, last year.
DEP spokesman Larry Hajna said the agency’s concern about GenX is shown by its criticism of the EPA’s faulty analysis of the chemical, and by its request to Chemours to test for GenX near the Deepwater plant last year. But he said the DEP has no plans to respond to the EPA’s inspection report.
Notice of violation
For its part, the EPA said it discovered that GenX was being shipped to Deepwater when it inspected the North Carolina and West Virginia sites in June 2017. That information led to the notice of violation that was not published until February 13 this year. The EPA declined to say how long the shipments lasted and said that any data on quantities of GenX shipped to Deepwater is protected by rules on confidential business information. The EPA does not regulate GenX or any other PFAS chemicals but issues health advisory limits on what it considers safe levels of the chemicals in drinking water.
Asked whether Chemours also violated the toxic substances law at Deepwater, as it is alleged to have done in North Carolina and West Virginia, the EPA said it is “continuing to investigate Chemours compliance with our environmental statutes.”
Last week, the EPA said in a long-awaited national Action Plan on PFAS chemicals that it intends to set health limits for PFOA and a related chemical, PFOS, and will begin the process of regulation by the end of 2019. But it would not say how long it might be before any regulation is implemented.
Environmental Working Group, a national advocate for tight curbs on PFAS chemicals, said it was unaware that GenX was being shipped to New Jersey, and said the EPA document highlights the need for a comprehensive program to sample water for all kinds of PFAS chemicals.
“The public and possibly EPA are largely unaware of exactly where these chemicals are used, stored and potentially released to the environment,” said EWG’s senior scientist, David Andrews. “EPA should add PFAS to the Toxic Release Inventory and publish information on production and use locations for this entire family of troubling chemicals.” The inventory is the EPA’s public database on toxic chemicals.
‘Significant new use’ of chemicals
In its February 13 letter, the EPA said Chemours had violated some parts of the Toxic Substances Control Act by failing to notify the agency of a “significant new use” for new chemicals including GenX that may represent a danger to the public. The EPA also accused Chemours of violating a 2009 consent order by its corporate predecessor, DuPont Co., requiring it to submit data on the chemical’s toxicity to the agency.
The violations at Chemours’ plants in Fayetteville, N.C. and Parkersburg, W.V. could also have occurred at Deepwater, argued Kathleen Gallagher, a member of North Carolina Stop GenX in Our Water, an activist group that is fighting for cleanup and compensation for GenX and other chemicals found in the Cape Fear River near Wilmington, NC.
“If Chemours is in violation here, they may also be in violation in NJ,” Gallagher wrote in an email. “NJ residents need to know if they have been exposed to other PFAS chemicals, in addition to PFOA and PFOS.”
Delaware Riverkeeper Network, an environmental group that advocates for tighter health limits on PFAS, said the EPA report shows that GenX shipments need to stop until more is known about the chemical’s health and environmental effects around the South Jersey plant.
“If Chemours is receiving shipments of GenX or is using or discharging GenX at the Chambers Works facility, there’s plenty of reason for grave concern,” said DRN’s deputy director, Tracy Carluccio. “EPA did not require enough analysis of GenX prior to its approval for use as a replacement and, if people are being exposed to it, they are once again unethically being used like guinea pigs.”
https://www.njspotlight.com/stories/19/02/22/chemours-shipped-pfas-substitute-chemical-to-south-jersey-plant-epa-says/
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Living Around Vinyl Floors, Fire-Resistant Sofas Can Be Toxic to Kids, Study Finds
Feb 22, 2019 | First Post
If you thought home decor and choice of flooring has no part to play in harming the environment, there's now a report that says otherwise. The most worrying bit of the report, however, is that the chemicals from them can be toxic for children that spend a lot of time around them.
Children living in homes that have vinyl flooring or couches and beds made of fire-resistant material were found to have higher doses of a particular chemical compound in their bloodstream.
Researchers found far higher levels of 'semivolatile organic' compounds in their blood and urine than other children. Studies in the past have also pointed to plasticisers and flame-retardant chemicals in furnishings implicated in childrens' poor health.
Some of the risks associated with them include ADHD, autism — even cancer.
Children that were exposed to the highest levels of these chemicals showed 20 to 40 percent of the "reference dose" for one of these semivolatile organic compounds: benzyl butyl phthalate. That's 20 to 40 percent of the "highest daily dose" that America's Environmental Protection Agency (EPA) considers "safe to ingest" without serious health consequences.
Kids from houses that had flame-retardant furniture had an average concentration of 108 parts per billion of these compounds in their blood serum — seven times higher than other kids did.
Fire-resistant sofas might not burst to flames, but they could give kids an illness or two.
For the longest time, the research community has assumed that furnishings and furniture do not release compounds fast enough for our body to accumulate them, Glenn Morrison, an environmental engineer from the University of North Carolina that wasn't involved in the study, told ScienceNews.org.
"Clearly the new findings undercut that (assumption)."
While there are some unverified claims that showering and washing clothes more frequently lowers the exposure to these pollutants, Morrison also sees little benefit in doing that long-term. "There’s a limit to how well those things work," he told ScienceNews.org.
The long term solution would be understanding exactly how these chemicals affect our bodies at different ages, and customers making healthy, safer choices against investing in furnishing that is, truly, toxic to them and their children.
https://www.firstpost.com/tech/science/living-around-vinyl-floors-fire-resistant-sofas-can-be-toxic-to-kids-study-finds-6136071.html
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FDA Moves to Update Sunscreen Regulations
Feb 22, 2019 | E&E - Greenwire
By Cecelia Smith-Schoenwalder
The Food and Drug Administration this week moved to update over-the-counter sunscreen regulations with the latest science.
FDA's proposed rule, set to be published in the Federal Register on Tuesday, will "take into account modern science to ensure the safety and effectiveness of sunscreens," said FDA Commissioner Scott Gottlieb.
The proposal asks for additional information on 12 active ingredients found in sunscreens that have yet to be determined as "generally recognized as safe and effective," or GRASE.
Sales of sunscreens containing two of those 12 ingredients — oxybenzone and octinoxate — are banned in places like Key West and Hawaii because of research linking the chemicals to coral reef damage (Greenwire, Feb. 6).
The proposed rule also looks at new labeling requirements. It aims to increase the maximum sun protection factor, or SPF, on labels from 50+ to 60+ and to list active ingredients on the front of packaging.
Gottlieb said some essential requirements for sunscreens haven't been updated in decades. "Since the initial evaluation of these products, we know much more about the effects of the sun and about sunscreen's absorption through the skin," he said in a statement.
Gottlieb added that over the years, people have increased their sunscreen usage. Companies have also altered their formulas.
"The proposal we've put forward would improve quality, safety and efficacy of the sunscreens Americans use every day," Gottlieb said.
The American Academy of Dermatology Association said it supports FDA's efforts to make sure people have access to safe and effective sunscreens.
Suzanne Olbricht, AADA president, said the proposed rule does not mean that sunscreens currently on the market are unsafe.
"As the proposed rule is finalized, we encourage the public to continue protecting themselves from the sun's harmful ultraviolet rays," Olbricht said in a statement.
The Environmental Working Group called the proposed rule "a big step toward cleaning up a largely unregulated industry."
"After more than 40 years, the FDA is at last taking serious steps to finalize rules that would require sunscreen companies to make products that are both safe and effective," David Andrews, an EWG senior scientist, said in a statement.
FDA will accept comments on the proposal for 90 days after its publication in the Federal Register.
https://www.eenews.net/greenwire/2019/02/22/stories/1060122211
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FERC Approves 1st LNG Plant in 2 Years After Ending Deadlock (1)
Feb 22, 2019 | BNA Daily Environment Report
By Rebecca Kern
The top U.S. energy regulator gave the first authorization in two years for a new liquefied natural gas export terminal, breaking an impasse that had threatened to bring approvals to a standstill.
The Federal Energy Regulatory Commission cleared Venture Global LNG Inc.’s proposed $5 billion Calcasieu Pass LNG terminal in Louisiana in an order late Feb. 21, according to a statement from the agency.
The project is one of several competing to be part of a second wave of LNG terminals sending U.S. shale gas overseas.
“The agreement that we struck today to break the dam open on this tricky issue gives me reason for optimism that we’ll be able to move expeditiously on these other applications,” Chairman Neil Chatterjee said in an interview.
Speculation of partisan divisions at the agency had been fueled when Venture Global’s project was struck from the agenda of the agency’s December meeting.
The commission has been split, 2-2, between Democrats and Republicans since Kevin McIntyre, a commissioner and former chairman, died in January.
Democratic Commissioner Cheryl LaFleur voted to approve the project, while her colleague, Rich Glick, dissented from the Feb. 21 order.
The compromise put forward to break the deadlock was to calculate the direct annual greenhouse gas emissions that the Venture Global project would emit as a percentage of total U.S. emissions.
LaFleur, who has repeatedly called for more analysis of greenhouse gas emissions in the agency’s environmental reviews, said in a Twitter post that the approval showed that the agency can take action when it’s willing to compromise.
DOE Reaction
“Here at DOE, we’re excited FERC took a very important first step to accommodate the needs of the U.S. energy and candidly it’s a great step forward to environmentalists around the world,” Dan Brouillette, deputy secretary at the Energy Department, told Bloomberg Environment. “In many cases, this LNG is displacing other forms of fossil fuels, primarily coal.”
Mark Menezes, under secretary for energy at the Energy Department, said that getting past the stalemate at the commission helps provide regulatory assurance for industry.
“It provides regulatory certainly for not only the applicants of the other projects, but also future investors and off takers because now they know what is expected for them to meet, assuming the analytical template we saw tonight can be used in the cases that are beyond this one,” Menezes said.
‘Path Forward’“The commission now has a path forward and a precedent on other, larger LNG certificates,” said Mike McKenna, a Republican energy strategist. “That is really important.”
Venture Global has 20-year contracts with companies including Royal Dutch Shell Plc and BP Plc for 80 percent of Calcasieu Pass’s export capacity.
The facility is designed to produce about 10 million tons a year, although it could boost output to 12 million tons a year at optimal operating conditions, according to FERC. The company is aiming to make a final investment decision this year, it said on its website.
https://news.bloombergenvironment.com/environment-and-energy/ferc-approves-1st-lng-plant-in-2-years-after-ending-deadlock-1
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FERC Clears Delayed Calcasieu Pass LNG Project
Feb 22, 2019 | Houston Chronicle
By James Osborne
The Federal Energy Regulatory Commission cleared the construction of the Calcasieu Pass LNG export terminal in Louisiana Thursday, ending a two-month impasse that had threatened to delay billions of dollars worth of LNG projects along the Gulf Coast.
In announcing the project's approval Thursday night, FERC said commissioners had "applied a new approach for consideration of direct greenhouse gas emissions from LNG facilities."
Chairman Neil Chatterjee said in a statement he hoped the criteria applied to the $4.5 billion Calcasieu Pass project could be used again in the future, potentially avoiding delays in FERC's decision making.
"This is significant, as I anticipate we'll be able to use the framework developed in this order to evaluate the other LNG certificates that the Commission is considering," he said.
Commissioners have been increasingly divided over how to consider the effects of LNG terminals and other energy infrastructure on climate change. And while commissioners would not address why they had not approved Calcasieu Pass, which was supposed to be voted on in December, it was widely speculated the facility's emissions were dividing members of the commission, which is currently split 2-2 after the death of commissioner Kevin McIntyre earlier this year.
The announcement drew cheers from the oil and gas industry Friday, with the American Petroleum Institute calling the decision, "the first step in a backlog of energy infrastructure projects that are key to sharing clean energy abroad."
The approval of Calcasieu Pass, which is being developed by Virginia-based Global Venture LNG, follows on from Exxon Mobil and Qatar Petroleum's announcement earlier this month they were moving ahead on the Golden Pass LNG export facility in Port Arthur, adding to a growing roster of U.S. LNG facilities either in operation or under construction.
Export capacity is expected to reach 8.9 billion cubic feet per day - compared to 3.6 billion in December - the U.S. Energy Information Administration is forecasting.
"We are exporting U.S. LNG to 34 different countries across five continents. The construction of this facility and the expedition of others under this new framework will further build upon the success of American natural gas," Energy Secretary Rick Perry said in a statement.
Construction on Calcasieu Pass will begin "immediately," Global Venture announced Friday, stating they had 20-year purchases agreements in place with BP, Shell, Edison S.p.A., Galp, Repsol and PGNiG.
There are currently close to a dozen LNG projects expected to come before FERC in the years ahead, part of worldwide LNG boom in which the United States is in competition with countries including Qatar, Australia and Canada.
Global Venture wrote in a letter to FERC earlier this month that regulatory uncertainty at FERC threatened to stifle U.S. LNG efforts. But at least for now the commission is working together, Chatterjee indicated Thursday, thanking commissioners Bernard McNamee, a Republican appointee, and Cheryl LaFleur, a Democrat appointee.
"Commissioner McNamee showed just how he got his reputation as being a 'lawyer's lawyer' through his attention to the law and work to find common ground," he said. "And Commissioner LaFleur was supportive of this project and constructive in working to reach our agreement."
https://www.chron.com/business/energy/article/FERC-clears-delayed-Calcasieu-Pass-LNG-project-13635512.php
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EPA Releases State Data on Chemical Spills
Feb 22, 2019 | Inside EPA
EPA is releasing for public comment states' responses to a voluntary survey on Clean Water Act (CWA) hazardous substances discharges over the past decade, part of the information the agency will use in deciding whether to finalize a proposed rule that no additional regulation of such chemical spills is necessary.
EPA announced the notice of data availability in the Feb. 19 Federal Register after posting the information on regulations.gov earlier this year.
A 2016 consent decree between EPA and environmental and public health groups required the agency by June 2018 to sign a notice of proposed rulemaking pertaining to the issuance of hazardous substance regulations and take final action after notice and comment.
EPA faces an Aug. 25 deadline to finalize its proposal under the consent decree.
EPA met the first deadline by proposing to establish no new spill prevention requirements for CWA hazardous substances under CWA section 311, based on an analysis of the frequency and impacts of reported CWA hazardous substances discharges and the existing framework of EPA regulatory requirements.
Following the proposed no-rule approach, environmental groups threatened to sue the agency over its failure to develop a hazardous substances spill rule, although they have yet to file litigation.
EPA says in the Federal Register that its initial data gathering efforts for the proposed no-rule action focused on assessing the scope of historical CWA hazardous substances discharges, identifying relevant industry practices, and identifying regulatory requirements related to preventing such discharges.
The agency also used available data to estimate the universe of potentially regulated entities subject to this action and developed a voluntary survey intended to collect information from states, territories, and tribes focused on the universe of potentially-regulated facilities and on a 10-year period of CWA hazardous discharges.
https://insideepa.com/daily-feed/epa-releases-state-data-chemical-spills
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The Energy 202: Oregon Pushes Sweeping Climate Bill After Democrats Win Big in 2018
Feb 22, 2019 | Washington Post
By Dino Grandoni
Fresh off of expanding their legislative majority in Oregon, Democrats in the state ravaged by wildfires have put forward sweeping climate legislation.
The 2018 election not only replaced Republican administrations in swing states like Michigan and Wisconsin with Democratic governors eager to address climate change through executive action. The blue wave also made blue states like Oregon even bluer.
That has put Democrats in the relatively sparsely populated state — whose climate-warming emissions are dwarfed by neighboring California — in an even better position to pass climate legislation.
“Oregon is a really small state and our relative global impact in terms of carbon emission is relatively small,” Gov. Kate Brown (D), who won reelection in 2018, said in a recent interview. “But I think it's critically important that a state like Oregon lead and pave the path for other states across the country to follow.”
The goal indeed is ambitious: To drive greenhouse gas emissions down 80 percent below 1990 levels by the middle of the century.
But lawmakers think the method they are turning to is tried-and-true: The legislation calls for the state to create a cap-and-trade system similar to the one used in California.
Under the cap-and-trade scheme put forward by Oregon Democrats in January, polluters buy credits for how much carbon dioxide and other warming gases they can emit every year. Economists generally like such trading systems for their ability to drive down emissions in a cost-effective way.
But for opponents to the plan, however, the whole project begs the question: How much of an impact can a state like Oregon really have on a global problem like global warming?
“We’re a state of 4 million people,” said State Sen. Herman Baertschiger Jr., who is the Republican leader of the state’s upper chamber. “So at the end of the day, you're not going to be able to measure how much carbon we're really putting into the air, it’s so small."
“And it's going to be at a great cost to the citizens of Oregon,” he added.
Yet for proponents of a cap-and-trade scheme, it is not just about reducing Oregon’s impact. It is also about setting a nationwide example.
“Most people in the country don't know how to pronounce Oregon and sort of know that we're somewhere near Idaho,” said State Rep. Karin Power (D), who is co-vice chair on the bicameral committee on climate legislation in the Oregon State Legislature. “But having a normal state like Oregon find a way to adopt policies to combat climate change will make it a mainstream thing that we can get back to nationally.”
Republicans, though, are pressing back against the proposal over concerns it will raise prices on businesses and consumers. They also note Oregon already has laws on the books aimed at reducing emissions in the transportation and electricity sectors.
But a spate of wildfires in recent years — thought by scientists to be made more intense by rising temperatures — has motivated many Oregonians to want its state to do more.
During the first eight months of 2018, more than 430,000 acres burned in a state known for its towering forests of Douglas firs and ponderosa pines. At times, the fires sent enough soot aloft to make the air quality as bad as Beijing’s.
Climate change is also having more subtle impacts. When Sam Tannahill started growing grapes in Oregon about a quarter century ago, his team usually started picking them either in the last week of September or the first week of October.
But as temperatures have gone up, that date has moved up to the first week of September. And the warmer weather mean his pinot noir grapes are sweeter. That, in turn, makes for a boozier wine.
“Pinot noir is known for its finesse and elegance,” said Tannahill, founder of A to Z Wineworks, “and we’re not looking for higher alcohol in our wine.”
Tannahill wants a cap-and-trade scheme in Oregon, but not everyone in Oregon's agricultural sector agrees. Some farmers are concerned it will raise fuel prices. Even certain traditional Democratic allies, like some labor unions, are not on board either due to concerns that their employers will move production outside the state.
“The cap-and-trade plan is almost certain to cause a loss of Oregon jobs to states that have weaker environmental regulations and far higher emissions,” Bill Kerr, president of United Steelworkers Local 1097, told lawmakers at a recent hearing. His union represents 600 workers at a pulp-and-paper mill in northwestern Oregon.
Democrats have been careful to craft their bill to win the support of key businesses that may otherwise leave the state, leading some on both the left and right in Oregon to lob accusations of political favoritism.
One exemption concerns fluorinated gases. These greenhouse gases are highly potent, but right now are an unavoidable byproduct for semiconductor manufacturers like Intel, which has a plant west of Portland in an area represented mostly by Democrats. Under the proposed cap-and-trade scheme, emitters of fluorinated gases would not have to pay for releasing them for five years.
Electric utilities like PacifiCorp and Portland General Electric would also get special treatment. They would not have to purchase allowances in the carbon market until 2030. The reasoning there is that the electric utilities are already reducing their carbon emissions under existing laws meant to phase out coal-fired power production.
Without issuing formal endorsements, Intel and the two electric utilities have engaged with lawmakers in Salem and so far appear to be open to the bill. "We are pleased that the bill, as introduced, reflects months of engagement around how to protect Oregon electricity customers," PacifiCorp spokesman Bob Gravely said.
Winning the support of the business community is one reason Oregon lawmakers have avoided trying to levy a tax directly on carbon emissions, as lawmakers to the north in the state of Washington tried to do last year through an unsuccessful ballot initiative. That effort engendered opposition from the oil giant BP, which spent millions of dollars to defeat the proposal.
A cap-and-trade system, instead, gives lawmakers the ability to blunt some the impact on businesses that may otherwise flee Oregon.
"It give certainty to these sectors impacted," Brown said.
https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2019/02/22/the-energy-202-oregon-pushes-sweeping-climate-bill-after-democrats-win-big-in-2018/5c6ef1a81b326b71858c6c04/?utm_term=.d72dc2e1d5cc
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Congress Tries to Walk the Climate Crisis Talk
Feb 22, 2019 | Roll Call
By Katherine Tully-McManus
Staffers working for environmentally minded lawmakers are trying to walk the talk on climate change by taking small personal actions while their bosses call for big-picture policy shifts.
Around Capitol Hill, several aides are aiming to create workplace cultures where being “green” is a priority and holding colleagues accountable is the norm.
The issue of sustainability has taken on new urgency on Capitol Hill because of a push by advocacy groups, led by the Sunrise Movement and freshman Rep. Alexandria Ocasio-Cortez, to make climate change a Democratic priority. They are calling for a Green New Deal — a sprawling plan to decarbonize the economy by making large-scale investments in the public sector. The progressive activists spent the first weeks of the 116th Congress pressing for a select committee.
In response, Speaker Nancy Pelosi formed the Select Committee on the Climate Crisis, an echo of a similar panel Democrats had when they were last in the majority. But its scope — lacking legislative and subpoena power — is more limited than advocates had in mind. And some have questioned the commitment of the appointed members, given that many accepted campaign contributions from the fossil fuel industry in the 2018 cycle.
With all eyes on them, it’s no wonder that Democratic members and staffers are doing what they can in their daily lives. The research is clear that a small number of major industries and corporations are responsible for most environmental impacts, but policymakers aren’t giving up on the idea that every reusable straw and bike commute counts.
Take Rep. Kathy Castor of Florida, the chairwoman of the new select panel. Castor’s offices in both Washington and her district feature live plants that naturally clean the air, and staffers compost used coffee grounds.
Recyclable materials from her Tampa office are processed by the Louise Graham Regeneration Center, a recycling service that provides employment for developmentally disabled adults, according to a Castor aide.
Castor and Rep. Ben Ray Luján’s offices both said district staffers are getting involved in environmental efforts. They carpool to events in their Florida and New Mexico districts, and Luján’s office relies on conference calling to cut down on driving. But that hasn’t insulated such members from criticism. Castor has faced it from green groups for having up to $100,000 invested in natural gas, oil and coal while she leads the climate crisis panel.
Top-down, bottom-up
The House has its own recycling program, run by the superintendent of House office buildings. Offices that opt in to the program recycle paper, bottles, cans, e-waste and more.
In the office of Rep. A. Donald McEachin, another member of the panel, staffers are diligent about recycling, but also spreading the word. Jamitress Bowden, communications director for the Virginia Democrat, said they help people get with the (recycling) program if they toss their items in the wrong place.
“It’s like, ‘Oh, no, that actually goes in the other bin,’” she said.
That kind of gentle social pressure in the workplace may be on a small scale in one House office, but with 30,000 workers across Congress and Legislative Branch agencies, those small actions can add up quickly.
“We’re conscious of the micro-impact,” Bowden said. “We are conscious in the office as we talk about the change that we need to see on a larger scale.” Walking into McEachin’s office, visitors will instantly get the hint about environmental priorities.
“The congressman chose green carpet and green curtains in our office for a reason. The environment is always on our mind here in Cannon 314,” Bowden said.
With the effort coming from both members and staffers, Bowden called the push for sustainability both “top-down and bottom-up.”
Do drink the water?
Staffers are skipping paper coffee cups from Starbucks or the Longworth and Rayburn cafeterias, opting instead for reusable mugs that can show off pride for their alma maters or charities of choice and sometimes score them a discount.
California Rep. Jared Huffman, who also sits on the select committee, is a known advocate for reusable water bottles.
“Rep. Huffman is a big fan of reusable water bottles so that people can use cheaper and lower carbon-footprint tap water,” Alexa Shaffer, Huffman’s communications director, said in a statement.
As the ranking member of the House Natural Resources Subcommittee on Water, Power and Oceans, Huffman has previously provided his colleagues on that panel with bottles. He assumed the chairmanship of the subcommittee in the new Congress, and Shaffer said he plans to hand out more to encourage his colleagues to cut back on plastic.
The Senate has its own water bottle evangelist, Richard Blumenthal. The Connecticut Democrat provides reusable ones to all his staffers, both in Washington and Connecticut. And he drives a hybrid car in both locations.
Hydrating sustainably in the House office buildings has been challenging in recent years. After dangerous lead levels were found in Cannon and Rayburn in 2016, bottled water became ubiquitous. For longtime staffers who underwent blood testing and anxieties related to the lead discovery, trusting what comes out of the faucet may take more than a fun water bottle or positive peer pressure.
Hold the omnibus
Some Huffman staffers go above and beyond mugs and water bottles, bringing reusable dishes and utensils with them to work to cut down on plastic as they eat lunch.
Sodexo, the food vendor for all eateries on the House side of the Capitol, is making changes to their offerings with the goal of being greener. The House Chief Administrative Office worked with Sodexo to transition to biodegradable soup containers and lids, recyclable napkins, and wooden stir sticks for coffee instead of plastic ones.
Sodexo also provides compostable hot food “to go” containers and sells $2.00 reusable coffee cups that give customers a discount if they use them.
“The CAO and our vendors are always looking for more opportunities to reduce, reuse, and recycle,” CAO spokesperson Dan Weiser said.
Those efforts come with a history. For a brief time during Pelosi’s first term as speaker, House cafeterias had compostable, corn-based products — part of her “Green the Capitol Initiative,” which she launched in 2007. But Republicans ended that initiative in 2011, citing concerns about cost and effectiveness, and plastic foam containers made a comeback.
In addition to recycling, House offices are buying recycled goods. Staff in multiple offices told Roll Call that they buy recycled or sustainably sourced paper, usually in bulk to cut down on packaging waste. Plenty of legislation reaches hundreds or thousands of pages, but many offices won’t be printing out an omnibus. Cutting down on unnecessary printing and maintaining digital records is another practice offices have adopted to cut down on waste.
Bike racks in the parking garages and around the Capitol complex, along with an expanding network of bike lanes in Washington, makes biking to work more feasible for staffers than it has been in the past.
One regular bike commuter in McEachin’s office had his bike stolen. His co-workers chipped in to help him buy a replacement, according to Bowden. Colleagues coughing up some hard earned cash to help replace your bike? That’s a green culture.
http://www.rollcall.com/news/hoh/staffers-green-new-deal-climate-crisis
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Are Republicans Wavering on Climate Change?
Feb 22, 2019 | Houston Chronicle
By James Osborne
For years, Republicans have questioned humans’ contribution to climate change, casting doubt on the well-established scientific conclusion that greenhouse gas emissions from burning oil and other fossil fuels is causing the planet to warm dangerously.
But as Democrats push the issue further into the spotlight, more and more House Republicans are themselves calling for action on climate change - even in oil rich states like Texas - raising the prospect the party is shifting after a decade-long stalemate on reducing greenhouse gas emissions.
The change in tone was on display at a hearing in the House Energy and Commerce Committee earlier this month, when one Republican after another said climate change was a problem. The committee’s top Republican, Rep. Greg Walden of Oregon, and Rep. John Shimkus, R-Ill., wrote a letter to Democrats asking that “the committee work together to find bipartisan climate solutions.”
It was enough to catch the attention of one of the witnesses at the hearing, Rich Powell, executive director at ClearPath, a political group advocating for conservative approaches to reducing greenhouse gas emissions.
“Everyone was saying this is real, its human caused by industrial activity and we need to get on board finding a solution,” he said. “It’s a pretty significant evolution of the conversation.”
The prospect of a Republican shift on climate comes amid increasingly dire forecasts of rising oceans and crop failures, with scientists warning governments must take action immediately to reduce greenhouse gas emissions. Such a move would likely drastically slash demand for fossil fuels like oil, a centerpiece of Texas’s economy, inciting fierce partisan battles on Capitol Hill that have so far brought any attempt at a legislative solution to a halt.
Trickle down
Republican interest in climate change is not unique, just infrequent. Former Republican presidential nominee John McCain called for “mandatory reductions” in greenhouse gas emissions during his 2008 campaign. Former Republican secretaries of state James Baker and George Shultz have pressed Congress to adopt a tax on greenhouse gas emissions, with proceeds going back to taxpayers through a dividend check.
Such moderate points of view appear to be trickling down into the ranks of the party. In the last Congress, a caucus on climate change counted 45 Republican House members.
“People focus on the most ardent deniers who just parrot the conservative line,” said Frank Maisano, a Washington media consultant whose clients include fossil fuel companies. “But there are plenty of Republicans saying, ‘I don’t necessarily believe what the climate groups believe, but I’m not saying this isn’t serious.’”
Public skepticism on climate is becoming more difficult to maintain politically, as more Americans believe climate change needs to be addressed - 60 percent now say they are “alarmed” or “concerned,” according to a survey by Yale University.
Rep. Bill Flores, R-Waco, was long among the skeptics. During his 2012 re-election campaign he described the climate change movement as “petty politics based on dubious ‘agenda-driven, scientific’ research.”
Nowadays, Flores can be found telling other members of the House Energy committee about the solar system he installed on his roof - “the largest residential solar system in central Texas” - and advocating for a market-driven approaches to climate change such as investing in batteries and other clean energy technology rather than regulating emissions.
“I have become much more knowledgeable about this particular policy issue than I was before,” Flores said in an interview. “I’m excited about the opportunities for America to be a leader in emissions reductions. We just need to make sure we get the policy right, then let American know how and ingenuity get us there.”
Other Republican members of Texas’s congressional delegation, including Senators John Cornyn and Ted Cruz, declined to be interviewed for this story. But Flores is hardly alone among Texas politicians speaking out on climate.
Since progressive Democrats began pushing the creation of a “Green New Deal,” to rapidly shift the U.S. economy from fossil fuels through massive government spending on renewable energy, Republicans in Washington have been quick to denounce the method, but not the aim.
In a speech on the Senate floor last week, Cornyn said, “People think about Texas, they think about oil and gas, but we believe in all of the above. I actually think moving toward cleaner and renewable energy is a good thing.”
Baby steps
But advocating for clean energy is a long way from voting for legislation, such as carbon taxes or tougher environmental laws, that would reduce demand for fossil fuels. And with President Donald Trump in the White House, who has repeatedly questioned government assessments of the national security threat posed by climate change, most in Washington expect any substantial change in the law to be years off, if not more.
“It’s a baby step forward. It’s just a baby step,” Tiernan Sittenfeld, senior vice president of government affairs at the League of Conservation Voters, said of Republicans’ acknowledgment of climate change. “This is a massive problem and we need big comprehensive solutions. But at the same time we still have [Senate Majority Leader] Mitch McConnell, a climate denier, and the most anti-environment president we’ve ever had.”
Following the midterm elections last year, political pressure is increasing on Republicans to acknowledge climate change. Republican governors in states such as Wisconsin and Colorado lost re-election to Democrats campaigning on promises to shift away from fossil fuels
https://www.houstonchronicle.com/business/energy/article/Are-Republicans-wavering-on-climate-change-13635463.php
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EPA Adopts Fringe Science Claim That Small Doses of Pollution Are Healthy
Feb 22, 2019 | EcoWatch
By Sam Nickerson
The U.S. Environmental Protection Agency (EPA) in April 2018 proposed relaxing standards related to how it assesses the effects of exposure to low levels of toxic chemicals on public health.
Now, correspondence obtained by the LA Times revealed just how deeply involved industry lobbyists and a controversial, industry-funded toxicologist were in drafting the federal agency's proposal to scrap its current, protective approach to regulating toxin exposure.
The proposed change came just two weeks after a top EPA official contacted toxicologist Ed Calabrese, whose claim that low doses of carcinogens and radiation are healthy stressors akin to physical exercise that activate the body's repair mechanisms has been panned by more mainstream researchers.
"I wanted to check to see if you might have some time in the next couple of days for a quick call to discuss a couple of items … " EPA deputy assistant administrator Clint Woods wrote to Calabrese.
The EPA's proposed regulation, signed by then-Administrator Scott Pruitt and published in the U.S. Government's Federal Register, copied Calabrese's recommendations to Woods almost verbatim.
Calabrese, who was also quoted in the EPA's press release for the proposal, celebrated the announcement in an email to former coal and tobacco lobbyist Steve Milloy, who served on President Donald Trump's EPA transition team.
"This is a major big time victory," Calabrese wrote. Milloy, who is also a Fox News commentator, replied that it was "YUGE."
The EPA's proposal is a departure from its long-time "linear no-threshold" approach to regulating the study of toxins: once a substance is found to be harmful at one level, the danger applies at all levels. In other words, there can be no safe level of radiation exposure.
Calabrese argues this approach is overly cautious and a financial detriment to industry. The new rule would require that regulators look at "various threshold models across the exposure range" for pollutants.
Low doses of otherwise toxic chemicals can be beneficial to human health in specific clinical situations, the LA Times noted, but experiments have produced mixed results and experts say it would be a risk to apply the findings to regulation for the general public.
"There is no way to control the dose a person gets from an industrial or agricultural chemical," David Jacobs, a professor of public health at the University of Minnesota, told the newspaper. "It's not being doled out in pills and monitored by a physician who can lower it if the patient isn't responding well."
The EPA has not announced a date for when it will make a decision on the rule proposal.
Health experts believe that if the EPA does adopt the rule, it could lead to wholesale changes to the agency's standards for regulating toxic waste, pesticides, and air and water quality.
"Industry has been pushing for this for a long time," George Washington University professor of environmental and occupational health David Michaels told the LA Times. "Not just the chemical industry, but the radiation and tobacco industries too."
Calabrese has long been connected to these industries and has received funding from tobacco firm R.J. Reynolds, Dow Chemical, Exxon Mobil and others, the LA Times reported.
Calabrese's role in the EPA's proposal illustrates how the Trump administration has pursued environmental policy recommendations from industry lobbyists based on research running counter to mainstream science.
According to the LA Times, Calabrese first emailed Milloy about whether it would be possible to get the EPA to abandon the linear no-threshold model in September 2017, not even nine months after Trump was sworn into office.
https://www.ecowatch.com/epa-pollution-heath-2629720153.html
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Pay Attention to the Growing Wave of Climate Change Lawsuits
Feb 22, 2019 | Vox
By Umair Irfan
In 1998, 46 states and the District of Columbia signed on to the largest civil litigation settlement in US history, the tobacco Master Settlement Agreement. Stunning in its scope and scale, the agreement forced the four largest tobacco companies to stop advertising to youth, limit lobbying, restrict product placement in media, and fund anti-smoking campaigns. It also required them to pay out more than $206 billion over 25 years.
Tobacco companies had in previous decades successfully swatted down hundreds of private lawsuits. But states found an opening by suing companies for the harm they caused to public health. “This lawsuit is premised on a simple notion: You caused the health crisis, you pay for it,” said then-Mississippi Attorney General Michael Moore in 1994.
Now another wave of lawsuits is trying to hold powerful institutions accountable for an even bigger crisis, by making them pay and change their ways. At least eight US cities, five counties, and one state are suing some of the world’s largest fossil fuel companies for selling products that contribute to global warming while misleading the public about their harms. In parallel, 21 young people are trying to suspend fossil fuel development as part of their high-profile climate rights case, Juliana v. United States, against the government. (The case is currently awaiting a hearing at the Ninth US Circuit Court of Appeals.)
And with several new Democratic attorneys general elected in the 2018 midterm elections, even more litigation may be on the horizon.
“It feels like there is a lot of climate change litigation right now,” said Paul Sabin, a professor of environmental history at Yale. “But this is only the beginning.”
The momentum is building in other countries too. In Canada, the Netherlands, and Ireland, citizens are taking their governments to court to demand more ambitious policies to fight climate change.
At stake in these cases are billions of dollars in liability and legal precedents that will last generations. For the plaintiffs — children, farmers, fishermen, and cities vulnerable to drought and sea level rise — weak federal climate policy and dire warnings from scientists about the future are driving a sense of urgency. And litigation offers something missing from every other climate change mitigation strategy, whether it’s the Green New Deal or a carbon tax: a villain.
“Big oil knew for decades that greenhouse gas pollution from their operations and their products were having a significant and detrimental impact on the earth’s climate,” Rhode Island Attorney General Peter F. Kilmartin said last year from atop a seawall, announcing his state’s suit against companies like Exxon Mobil, Chevron, BP, and Royal Dutch Shell. “Instead of working to reduce that harm, these companies chose to conceal the dangers, undermine public support for greenhouse gas regulation, and engage in massive campaigns to promote the ever-increasing use of their products and ever-increasing revenues in their pockets.”
With so many lawsuits filed across so many jurisdictions, the likelihood of a climate case getting to a trial is growing. Outside the courtroom, public opinion is starting to shift, with a majority of Americans wanting the government to address climate change, according to several recent polls. The hope among the plaintiffs is that one of the suits could lead to comprehensive action on climate change that the political process has failed to provide.
However, the plaintiffs are in uncharted legal territory, and opponents say these cases hinge on radical, unprecedented expansions of existing laws. The litigation also circumvents the legislative process, which is arguably where climate change policies should be implemented in the first place.
As federal appeals courts weigh whether some of these lawsuits should be allowed to go to trial, it’s helpful to understand the background of environmental litigation, the arguments being made, and what they could mean for the fight against climate change. Here’s what you need to know.Environmental lawsuits have a long history, but climate liability and climate rights are a new frontier
“Litigation has been a crucial strategy for environmental activism since the ’60s and the ’70s,” said Sabin, the Yale professor. In fact, we’ve already seen a successful lawsuit centering on climate change. The Environmental Protection Agency was forced to regulate carbon dioxide to fight climate change as the result of a 2007 Supreme Court decision in a lawsuit, Massachusetts v. EPA. It’s the most significant example of a climate change mitigation policy established through the courts.
One of the earliest cases to invoke harm caused by greenhouse gases dates back to 1986. In the City of Los Angeles v. National Highway Traffic Safety Administration lawsuit, the city and environmental organizations challenged NHTSA’s rollback of a vehicle emissions law. An appeals court ruled in favor of the federal government.
But the current wave of litigation is bringing up new legal questions in the context of climate change for the first time. For local governments suing fossil fuel companies, the fight is over who’s on the hook for paying for the damages stemming from rising average temperatures. In the youth lawsuits, the key issue is whether a stable climate is a civil right.
Another interesting factor in these cases is that climate science itself isn’t up for debate. The lawsuits center on some fundamental interpretations of law, but in nearly all cases, the parties agree on these facts: Greenhouse gases from burning fossil fuels are heating up the planet, which in turn is fueling sea level rise, more extreme weather, and changes in the overall climate.
In San Francisco and Oakland’s lawsuits against oil companies, for example, the presiding federal judge even asked for a climate change tutorial from the plaintiffs and the defendants. Both sides largely agreed on the fundamentals.
“Chevron accepts the consensus in the scientific communities on climate change,” said Theodore Boutrous, an attorney who presented a climate tutorial on behalf of Chevron last year and agreed with the Intergovernmental Panel on Climate Change’s conclusions that human activity is warming the planet. “There’s no debate about climate science.”
The dispute, then, is over how to apply existing laws. Since the legal principles these lawsuits invoke have never been applied to climate change, the outcomes stand to set huge legal precedents. Depending on how they’re decided, these lawsuits could open the floodgates to new litigation. At the same time, judges are uncertain about how to proceed and have reached widely differing conclusions on similar lawsuits. Which is why the tension and drama around these suits is so high, compared to a fight over, say, a carbon tax.
The plaintiffs in the suits against the government and against fossil fuel producers all say that their objective is to see the cases through to the end, but they stand to accomplish a lot well before the cases come to fruition.
“I think that litigation serves multiple goals,” Sabin said. Beyond winning the case, forcing powerful businesses and institutions to publicly grapple with their impact on the planet is an end unto itself. The discovery process where parties have to reveal some of their inner workings could also be enlightening. “Those [goals] include framing an issue in a public setting, drawing attention an issue. They include uncovering documents and revealing what’s been going on.”Local governments are suing fossil fuel companies for posing a public nuisance with their products
So far, 14 US cities, counties, and one state have sued fossil fuel companies. Most of these cases are still undergoing pretrial legal motions. The lawsuits brought by the cities of San Francisco and Oakland were dismissed but are being appealed.
In these cases, the local governments are claiming fossil fuel producers have created a public nuisance. This refers to an activity that impairs the use of a public good through damage, creating hazards, and reducing comfort. It’s a principle that’s long been used to litigate environmental issues from protecting drinking water to controlling air pollution.
The argument in these cases is that fossil fuel companies have known for years that their products release greenhouse gases that warm the planet, which in turn harms the public interest: Rising seas are encroaching on shoreline properties, and drier weather is increasing wildfire risks for homes.
At the same time, the plaintiffs say, coal miners and oil drillers obfuscated their products’ impact on the environment despite their own internal research showing that carbon dioxide from burning fossil fuels is warming the planet. “The bottom line story is: ‘You made this product. You knew while making this product that it was going to cause these horrific problems. And you did not tell anyone,’” said David Bookbinder, chief counsel at the Niskanen Center.
The state of Rhode Island, for instance, filed suit in Providence/Bristol County Superior Court against 14 oil and gas companies last year. The complaint notes that the state has more than 400 miles of coastline threatened by sea level rise as warmer temperatures melt polar ice. That in turn is fueling larger storm surges, saltwater intrusion, erosion, and nuisance flooding. More carbon dioxide in the atmosphere is also making the ocean more acidic, threatening shellfish in the Narragansett Bay.
The complaint alleges that many of these fossil fuel companies knew about how their products caused climate change decades ago but hid that information, even as they started protecting their own facilities from consequences like rising oceans and melting polar ice. More recently, oil companies have even asked for government funding to build sea walls to protect coastal refineries from these climate change impacts.
“By 1988, Defendants had amassed a compelling body of knowledge, unavailable to the general public and the broader scientific community, about the role of anthropogenic greenhouse gases and specifically those emitted from the normal use of Defendants’ fossil fuel product, in causing global warming,” according to Rhode Island’s complaint. “Defendants took affirmative steps to conceal, from the State and the general public, the foreseeable impacts of the use of their fossil fuel products on the Earth’s climate and associated harms to people and communities.”
As recourse, Rhode Island wants oil companies to pay for sea walls and other infrastructure to protect human safety and property as well as punitive damages.Fossil fuel companies say that climate change is too big a problem for the courtroom
The obvious counterargument is that humanity has also benefited immensely from fossil fuels. Coal, oil, and natural gas have provided lifesaving, economy-boosting heat and electricity to billions. The companies extracting these fuels say they would be out of business if people weren’t buying what they’re selling.
And it’s not just the SUVs that run on gasoline or the power plants that burn coal that are driving climate change; it’s the way we build our roads to accommodate cars rather than public transit, design our cities for sprawl rather than density, and orient our diets around meat and dairy instead of vegetables, fruits, and grains.
According to fossil fuel producers, putting companies on trial before a judge and jury doesn’t come anywhere near close enough to solving the problem, nor does it achieve justice.
Joshua Lipshutz, an attorney at the Gibson Dunn law firm who served as legal counsel for Chevron, has argued that climate change is a fundamentally different animal compared to past applications of public nuisance torts. Usually, such rules are applied to a specific instance of pollution, like a leaking gas pipe. This problem has a defined scope (the amount of gas released), it was something that wasn’t supposed to happen, and there’s a specific solution (fixing the pipe, and if negligence is found, making the polluter pay a fine).
However, with climate change, the plaintiffs are seeking damages for future harms, things that have not occurred yet. They’re also blaming a form of pollution, greenhouse gases, that can’t be attributed to any one entity. Cars, airplanes, furnaces, and power plants all emit carbon dioxide. The US isn’t the only country spewing carbon dioxide, and none of the plaintiffs are seeking an injunction against producing even more fossil fuels.
Another complicating factor is that every tier of government has pursued policies that have encouraged the use of fossil fuels, from building highways to subsidizing airports to constructing greenhouse gas-emitting power plants. So if an oil and gas company can be held liable for carbon dioxide emissions, so too perhaps can city governments, power companies, and automakers.
“The plaintiff’s theory, if you take it to its natural conclusion, you can bring this lawsuit against anyone,” Lipshutz said. “This really is sort of an unprecedented type of lawsuit where you’re seeking to label an important part of our economy that’s perfectly lawful ... and for companies to pay for future damage that has not yet occurred.”
But as specious as oil companies may think these suits are, they are taking them extremely seriously. Exxon Mobil, the world’s largest investor-owned oil company, launched a million-dollar push last year for carbon tax legislation that includes immunity from climate change-related lawsuits. Exxon is also facing lawsuits for allegedly misleading investors about the risks of climate change to its business as well as the risks of future climate regulations. (Exxon did not respond to requests for comment.)
Fighting these cases also costs these companies, in time, money, and unwanted attention in the spotlight, so there’s pressure to end these lawsuits quickly. “The longer the cases against oil companies drag on, the less happy investors will be,” said Daniel Farber of the Center for Law, Energy, and the Environment at the University of California Berkeley.
As for the courts, judges can’t even agree on who has jurisdiction over these kinds of lawsuits. At the US District Court for the Northern District of California, one judge, William Alsup, decided to move lawsuit from San Francisco and the City of Oakland against oil companies to federal court. He later dismissed the claim on the merits.
Another federal judge at the same court, Vince Chhabria, sent climate lawsuits filed by Marin and San Mateo counties as well as the city of Imperial Beach against 37 fossil fuel companies to California state court.
Both sets of decisions are being appealed at the Ninth Circuit Court of Appeals.
In these public nuisance lawsuits, the plaintiffs believe they have a better shot of winning their cases in state courts. The defendants think their case is stronger in federal courts and have pushed for federal courts to hear these cases when they’ve been filed in lower courts. “The reality is, we think that ultimately it shouldn’t matter whether the cases should be heard in state court or federal court,” Lipshutz said. “They are not viable legal claims.”
Fossil fuel companies also say that long-shot lawsuits, especially when they come from states, counties, and cities, are a waste of the public’s money and time that would be better devoted to adapting to climate change and directly mitigating emissions.
“Focusing resources on a novel, never-accepted theory just isn’t the way to have a productive chance at really addressing global warming,” Chevron’s Boutrous told Vox last year. “No tort theory has ever been developed that comes close to covering these issues.”
But even if these climate lawsuits aren’t decided in favor of cities or states, the discovery process, where the defendants may be required to turn over internal documents to the court, could create new lines of attack. Already, we’ve seen leaked internal documents from oil companies spur lawsuits, so further revelations could lead to even more litigation. That’s why the fossil fuel companies named in these suits are rushing to have these suits thrown out before they actually begin.The children’s climate change lawsuit against the federal government is facing a make-or-break ruling this year
In 2015, 21 plaintiffs filed a lawsuit against the federal government in the United States District Court in Oregon. The plaintiffs, now between the ages of 11 and 22, include Sophie Kivlehan, 20, the granddaughter of the famed climate scientist James Hansen, and Kelsey Cascadia Rose Juliana, 22, the namesake of the case Juliana v. US. The case is backed by the nonprofit Our Children’s Trust, which has also backed similar suits in eight other states.
The suit argues that the US government undertook policies that contributed to climate change. This includes leasing public lands for mining, drilling, and fracking to extract fossil fuel. The complaint notes that the federal government has long known about the consequences of burning fossil fuels, namely climate change.
By pursuing these policies, the federal government is denying young people the constitutional right to a public resource, a safe climate.
“That’s the brilliance of having children as the plaintiffs,” said Ann Carlson, a professor of environmental law at the University of California Los Angeles. “They’re arguing about the future of the planet.”
For the plaintiffs, the goalposts are clear. “The issue here is climate change and the only measure of success is when this federal government starts recognizing its lengthy responsibility in action in causing climate change and a plan is implemented to cease emissions,” said Philip Gregory, one of the lead attorneys representing the children in the suit. That would mean a suite of aggressive policies to limit global warming.
In a surprising move, the Supreme Court stepped in to pause Juliana v. US last year just days before the trial was set to begin. Then suddenly the high court allowed it to go ahead. Then in November, the Ninth Circuit paused the case to hear an appeal from the federal government. That appeals process is still underway.
The key argument from the children is that the federal government violated the civil rights of the plaintiffs. Gregory drew an analogy to racial discrimination:
Let’s say the federal government develops a parking lot, and it leases a restaurant in the parking lot, and that restaurant even though it’s privately owned, engages in segregation. Let’s just say that. Well that’s a constitutional violation that the government is leasing property that is causing harm. That harm being segregation. So now let’s change the words. The federal government has federal lands that it’s leasing to companies to remove coal that the federal government knows will be burned and cause fossil fuel emissions which will harm children and future generations. The federal government knows that.
It’s this knowledge of resulting harm — harm that the government has studied for decades — that makes the federal government liable for the fossil fuel emissions resulting from its policies, Gregory argues. And not only did the government know about the harms of fossil fuels, it has had a growing suite of alternatives at its disposal. “What we’re saying here is the evidence is uncontradicted that we have viable alternatives to a fossil fuel energy system,” Gregory said.
This is a new, untested argument, and it could set a precedent. “It’s clear that federal courts in the United States have not previously recognized a constitutional right to a clean environment or to a stable climate system,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “In my view there is a compelling legal argument for it.”
Asked for comment, the Justice Department referred Vox to an 82-page brief filed in its appeal of the suit before the Ninth Circuit. The brief, presented by acting Assistant Attorney General Jeffrey Bossert Clark, outlines a number of counterarguments.
The first is that the plaintiffs don’t have standing and cannot demonstrate a particular injury since climate change is something that affects the whole world in complicated ways. The Justice Department argues that the plaintiffs didn’t go through the proper regulatory channels outlined under the Administrative Procedure Act and that the Constitution doesn’t hold any right to a stable climate system.
“Plaintiffs’ alleged fundamental right to a ‘livable climate’ finds no basis in this Nation’s history or tradition and is not even close to any other fundamental right recognized by the Supreme Court,” Clark’s filing states.
The Justice Department is also arguing that existing laws such as the Clean Air Act already cover climate change.
The question now is how the federal appeals court will weigh these arguments later this spring.Fishermen and farmers are also suing for damages caused by climate change
There are numerous other climate change liability lawsuits pending in the US and around the world, but the circumstances around them are more unique.
A group of Oregon and California fishermen, represented by the largest commercial fishing industry trade group on the West Coast, filed a lawsuit in California Superior Court against 30 fossil fuel companies. Rising carbon dioxide levels in the atmosphere are causing the ocean to warm and to acidify, and fishermen’s yields of valuable catches like Dungeness crab are declining, the group noted. The Pacific Coast has already seen blooms of toxic algae spurred by warmer oceans. That algae has in turn made it unsafe to eat many of the fish and other animals in the water.
Unlike the lawsuits filed by the cities, the fishermen can point to direct monetary harm that has already occurred from warming. Several heat waves have struck the Pacific Ocean since 2014. The crab fishing season in 2015 was delayed due to the presence of an algae neurotoxin in shellfish. The delay forced some fishing operations ashore for good while harming the finances of others.
These damages may give the case stronger legal footing, but it’s still too early to tell how the lawsuit will proceed.
Meanwhile, citizens in the Netherlands, Ireland, and Pakistan have sued their governments for failing to address climate change. The government of the Philippines is currently conducting a human rights inquiry into fossil fuel producers and weighing whether to enter litigation against these companies.
Saul Luciano Lliuya, a farmer in Peru, is suing the German energy giant RWE. The glaciers in the Andes mountains have lost half of their ice in the past 40 years, and he was worried that this would brings risks of landslides and flooding to his hometown of Huaraz, home to 120,000 people.
In 2015, he filed suit against RWE, a company with about $50 billion in annual revenue, for $20,000, the estimated cost to build a dam to control flooding around his city. RWE produces about 73 percent of its electricity from fossil fuels. It’s also headquartered in Essen, 6,500 miles away from Huaraz.
Yet surprisingly, a German court ruled in 2017 that the case has merit and is now collecting evidence for the proceedings.For activists, climate lawsuits are a high-stakes, high-reward gambit
“These cases are sort of on the cutting edge,” said Farber, of the Berkeley law center. “I think it’s kind of a long shot that they’re actually going to succeed in the end, although maybe a long shot worth taking just because the payoff would be so great.”
Climate change lawsuits could lead to multibillion-dollar payouts, and force an unwilling government to make cutting greenhouse gases a central priority. Both types of cases could set precedents that would last for decades. But litigation takes years of effort and can cost millions. If a court or a jury rules against the plaintiffs, they could end up worse off than when they started.
Given recent history, many of the nuisance lawsuits against fossil fuel companies will likely be tossed out. But it only takes one successful case to set an industry-rocking precedent.
And a successful lawsuit still might not address the underlying problem of greenhouse gas emissions, which are still rising in the US and still need a comprehensive policy solution.
“These cases are one moment in time in something that’s going to be going on for 100 years,” Yale’s Sabin said. “So whether they win or not, they’re part of that longer process and if they win, they’ll reshape the conversation.”
https://www.vox.com/energy-and-environment/2019/2/22/17140166/climate-change-lawsuit-exxon-juliana-liability-kids
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