Preview Newsletter
AM ACC 2/28/2019
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(ACC Mentioned) US Chems ‘Encouraged’ by Progress in Resolving China Trade Dispute
Feb 28, 2019 | ICIS
The US chemicals industry is encouraged by the progress the US and China appear to have made toward a mutually beneficial settlement of their trade dispute, industry association American Chemistry Council (ACC) said on Wednesday. -
(ACC Mentioned) Lighthizer on the Hill
Feb 27, 2019 | Politico - Morning Trade
By Sabrina Rodriguez
..A coalition of more than 150 organizations representing U.S. manufacturers, farmers and other industries is urging the Trump administration today to publish a Federal Register notice that confirms the president’s decision to delay a tariff increase on China before March 2... -
Wheeler Wins First Test Toward Senate Confirmation as EPA Chief
Feb 27, 2019 | BNA Daily Environment Report
By Dean Scott
Andrew Wheeler’s final confirmation vote to head the EPA could come later this week after his nomination cleared a procedural vote Feb. 27. -
Collins to Vote Against Trump's EPA Pick
Feb 27, 2019 | The Hill - E2 Wire
By Miranda Green
Sen. Susan Collins (R-Maine) says she will vote against the confirmation of President Trump’s pick to head the Environmental Protection Agency (EPA), saying his policies are “not in the best interest” of the environment or the country’s public health. -
DOJ Urges High Court to Retain Limited Agency Deference for ‘Certainty’
Feb 27, 2019 | Inside EPA
By David LaRoss
The Department of Justice (DOJ) is asking the Supreme Court to retain a limited form of judicial deference for EPA and other agencies’ interpretations of their rules rather than scrapping the doctrine altogether as conservatives, industry groups and others have urged... -
Researchers Find Breakthrough in 'Upcycling' Plastic
Feb 28, 2019 | E&E Climatewire
By John Fialka
Scientists have found a new way to recycle one of the world's most ubiquitous and long-lasting waste products: single-use plastic bottles. -
(ACC Mentioned) Chemical Law’s Worker Safeguards Ditched by EPA, Advocates Say
Feb 28, 2019 | BNA Daily Environment Report
By Pat Rizzuto
The EPA allowed a new ingredient for wood panel glues to be sold in December despite the potential that the compound might cause cancer. -
(ACC Mentioned) Toy Industry Presses for Harmonisation in Vermont Reporting Rule
Feb 28, 2019 | Chemical Watch
By Kelly Franklin
Toy manufacturers are pressing for changes to Vermont’s children’s product reporting rule to increase harmonisation with other state’s schemes, even while battle lines harden over other potential amendments. -
Andrew Wheeler’s PFAS ‘Action’ Plan Is All Plan, No Action
Feb 27, 2019 | The Hill - Congress Blog
By Scott Faber
Tap water for an estimated 110 million Americans is contaminated with fluorinated chemicals known as PFAS, which are linked to cancer, thyroid disease and weakened childhood immunity. But the so-called action plan for dealing with this crisis... -
Crippling Deficits Jeopardize California Toxics Agency’s Work
Feb 27, 2019 | BNA Daily Environment Report
By Emily C. Dooley
Ballooning deficits could force the California agency in charge of overseeing hazardous waste sites to cut permitting, enforcement, and investigative efforts. -
A Gap Remains in the Circular Economy Conversation: Toxic Chemicals in Packaging
Feb 27, 2019 | Environmental Defense Fund
By Boma Brown-West and Tom Neltner and Michelle Harvey
This week Walmart joined a growing number of companies that are trying to advance the circular economy for packaging. -
J&J Must Defend Talc Claims in New York State Court
Feb 27, 2019 | BNA Daily Environment Report
By Peter Hayes
Johnson & Johnson will have to defend asbestos exposure claims in New York state court after failing to show that a talc maker was fraudulently added to the suit to defeat federal jurisdiction. -
Bayer Faces Mounting Weedkiller Lawsuits Amid Sweeping Restructuring
Feb 27, 2019 | Wall Street Journal
By Ruth Bender
Bayer AG said the number of plaintiffs suing over its weedkillers had risen by a further 1,900 over the past three months, adding to the legal pressure on the German pharmaceuticals and chemicals company as it navigates a broad restructuring of its businesses. -
EU Waste-Handling Spat Jams Up Pact on Persistent Toxics
Feb 27, 2019 | BNA Daily Environment Report
By Stephen Gardner
Plastics recyclers in the European Union are awaiting the outcome of a dispute between the bloc’s member countries over the treatment of waste that contains highly hazardous, internationally restricted chemicals. -
Texas Lt. Gov. Dan Patrick Weighs in on LNG Debate in Brownsville
Feb 27, 2019 | Houston Chronicle
By Sergio Chapa
Texas Lt. Gov. Dan Patrick is asking federal regulators to approve a permit for a proposed liquefied natural gas export terminal at the Port of Brownsville. -
House Democrats Want Answers on Interior’s Oil and Gas Waivers
Feb 27, 2019 | BNA Daily Environment Report
By Stephen Lee
Two House Democrats are asking an Interior Department agency for more information about why it gave oil and gas companies waivers to a rule designed to prevent sudden overflows. -
Green Jobs Bill Would Prioritize Training for Minorities, Women
Feb 27, 2019 | BNA Daily Environment Report
By Bobby Magill
The federal government should give minorities and others who have suffered from pollution an opportunity to thrive in a clean energy economy, the co-founder of a renewable energy startup told a House subcommittee Feb. 27. -
Policymakers Back Long-Term CFATS Reform But Split on Rule Flexibility
Feb 27, 2019 | Inside EPA
By Ariana Figueroa
Democratic and Republican lawmakers, along with Trump administration officials, agreed during a Feb. 27 hearing on the need for a long-term reauthorization of the Department of Homeland Security's (DHS) chemical facility safety program but lawmakers appeared divided... -
First Responders Need DHS Chemical Data: House Dems
Feb 28, 2019 | BNA Daily Environment Report
By Sam Pearson
House Democrats want to share more information from a federal chemical security program with state and local first responders, they said at a hearing Feb. 27. -
Key Senate Republican Demands Action on Grid Threats
Feb 28, 2019 | E&E Energywire
By Peter Behr
Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he will push for mandatory federal regulations to protect the nation's electrical networks against destructive shock waves from an atmospheric nuclear explosion or massive solar flare. -
White House Issues NEPA Guidance for Large Projects
Feb 27, 2019 | E&E News PM
By Maxine Joselow and Courtney Columbus
The White House has offered guidance to states looking to streamline the environmental review process for large infrastructure projects. -
EPA Eases Industrial Monitoring for Smog-Forming Pollutants (1)
Feb 28, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Costly nonstop air pollution monitoring requirements for power plants and large steel, aluminum, and paper manufacturers across the Eastern U.S. will be relaxed under an EPA rule. -
EPA Schedules Hearing on Mats Rollback Proposal
Feb 27, 2019 | Inside EPA
EPA has scheduled a public hearing for March 18 at agency headquarters on its proposal to scrap the “appropriate and necessary” cost-benefit finding that underpins the Obama-era mercury and air toxics standards (MATS) rule... -
Pelosi 'Can't Say' Congress Will Pass 'Green New Deal'
Feb 27, 2019 | E&E News PM
By George Cahlink
House Speaker Nancy Pelosi today downplayed possible House action on the "Green New Deal," praising the enthusiasm behind it but saying committees would take the lead in writing any climate legislation. -
Republicans Love to Talk About the 'Green New Deal'
Feb 28, 2019 | E&E Daily
By Nick Sobczyk
House Natural Resources Committee Republicans don't think the "Green New Deal" falls in their jurisdiction, but they sure do talk a lot about it. -
A Growing Divide on Climate Science: Trump vs. the Rest of the World
Feb 28, 2019 | New York Times
By Coral Davenport
New efforts by President Trump and his staff to question or undermine the established science of climate change have created a widening rift between the White House on one side, and scientific facts, government agencies, and some leading figures in the president’s own party on the other. -
Carbon Capture Gains Support of Senate Climate Change Denier
Feb 27, 2019 | BNA Daily Environment Report
By Abby Smith
Sen. James Inhofe (R-Okla.) can support at least one bill that would reduce carbon emissions—because it supports continued use of fossil fuels. -
Alaska Climate Actions Uncertain After Governor Dissolves Panel
Feb 28, 2019 | BNA Daily Environment Report
By Jill Burke
Alaska’s Legislature may decide to take action on recommendations to ease the impacts of climate change, but the state doesn’t need the panel that made them, a spokesman for the state’s governor told Bloomberg Environment. -
Democratic Presidential Hopefuls Get High Environmental Scores
Feb 28, 2019 | BNA Daily Environment Report
By Tiffany Stecker
Thirty-six senators, including all of the Senate’s 2020 presidential nominees, notched perfect scores on the League of Conservation Voters’ barometer of environmental commitment for 2018. -
Show Us Your Climate Risks, Investors Tell Companies
Feb 28, 2019 | Wall Street Journal
By Gabriel T. Rubin
Companies are under more pressure than ever to disclose their exposure to climate-change risks.
Industry and Association News
TSCA News
Chemical Management News
Energy News
Chemical Security News
Transportation and Infrastructure News
Environment News
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(ACC Mentioned) US Chems ‘Encouraged’ by Progress in Resolving China Trade Dispute
Feb 28, 2019 | ICIS
The US chemicals industry is encouraged by the progress the US and China appear to have made toward a mutually beneficial settlement of their trade dispute, industry association American Chemistry Council (ACC) said on Wednesday.
The group was reacting to testimony earlier on Wednesday by US Trade Representative Robert Lighthizer to the congressional Ways and Means Committee.
The ACC said that in his testimony Lighthizer made clear that achieving structural changes to China’s unfair practices were President Donald Trump’s top priority.
“If the President also seeks a commitment from China to purchase more US goods, then chemicals, the heart of all US manufacturing, offer the most promising and advantageous opportunity for US export growth,” said Cal Dooley, ACC president and CEO.
The shale gas revolution has attracted $202bn in announced US chemical industry investment, much of which is directed toward US export markets, including China, Dooley said.
However, in the wake of the trade dispute the US has applied tariffs on $15bn in imports of chemicals and plastics from China, and China has retaliated with duties on $11bn in US exports of chemicals and plastics to that country.
“Tariffs weaken our industry’s competitive advantage by impacting international supply chains and many of the inputs that US chemicals manufacturers rely on to stay competitive in the global marketplace,” he said.
Eliminating tariffs could help the US continue to build on the 500,000 manufacturing jobs created under Trump, he said.
While chemicals were among the key sectors affected by the US-China trade dispute, now they could serve as one of the pillars underpinning a potential resolution, Dooley said.
“To get there, we strongly urge the US and China to agree to exclude all chemical products from their respective tariff lists,” he said.
https://www.icis.com/explore/resources/news/2019/02/27/10324912/us-chems-encouraged-by-progress-in-resolving-china-trade-dispute/
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(ACC Mentioned) Lighthizer on the Hill
Feb 27, 2019 | Politico - Morning Trade
By Sabrina Rodriguez
With help from Doug Palmer, Adam Behsudi and Megan Cassella
QUICK FIX
— U.S. Trade Representative Robert Lighthizer will testify before the House Ways and Means Committee today to discuss the status of U.S.-China trade talks. The trade chief is expected to get an earful from lawmakers on both sides of the aisle on the Trump administration’s trade policies.
— Mexico wants a deal that lifts U.S. tariffs on steel and aluminum “in the next few weeks” to help clear the way for ratification of the new North American trade pact, a top Mexican official said Tuesday.
— More than 150 industry groups are urging the Trump administration to publish a Federal Register notice that confirms the president’s decision to hold off on increasing tariffs on Chinese goods on March 2.
** A message from The Alliance for American Manufacturing: American manufacturing is booming, outpacing private sector job creation. Factories are looking to hire more than 400,000 workers. The steel industry is adding jobs and making new investments; imports are down and production is up. Congress shouldn’t roll back this progress by weakening trade enforcement. Learn more here. **
IT'S WEDNESDAY, FEB. 27! Welcome to Morning Trade, where your host thinks it's going to be a busy day for everyone in Washington today. Say hi if you're at the Ways and Means hearing (and if you're watching remotely, send your take)! Got any trade news to share? Let me know: srodriguez@politico.com or @sabrod123.
DRIVING THE DAY
LIGHTHIZER ON THE HILL: Newly powerful House Democrats will have their first opportunity to publicly grill Lighthizer this morning at a Ways and Means Committee hearing focused on U.S.-China trade.
The U.S. trade chief met with panel Republicans and Democrats separately on Monday and Tuesday, respectively, in an effort to “mitigate some of the heat” ahead of today’s hearing, one House aide told Morning Trade.
Lighthizer expects a tough crowd, but it’s something the China hard-liner could use to his advantage amid fears that President Donald Trump will settle for a weaker deal with Beijing. “Bob is welcoming this hearing to potentially strengthen his hand with the president,” said a source close to the trade chief.
The meeting is the first public congressional hearing on trade since Democrats took over the House in January. Behind the scenes, Lighthizer has been meeting with committee members more frequently this year to discuss trade issues, particularly the U.S.-Mexico-Canada Agreement.
What are members thinking? Rep. Earl Blumenauer (D-Ore.), chairman of the Ways and Means Trade Subcommittee, said he wants to hear what the administration is doing to address the U.S.’s “substantial problems” in trading with China and “if any such agreement can be credibly enforced.”
Lighthizer must also reveal why Trump believes that the world’s two largest economies are getting “very, very close” to a deal, Rep. Ron Kind (D-Wis.) told Morning Trade. The president “seems to be more upbeat and optimistic. I want to know [where] the basis for that is given the history of China’s noncompliance,” he said.
Rep. Bill Pascrell (D-N.J.) is ready to press Lighthizer to reject a deal based on “meager offers of cheap transactions.” In a statement, the lawmaker said he “will continue to encourage Ambassador Lighthizer to be firm in sticking to his stated goals and negotiating lasting changes to China’s unfair trade practices.”
Beyond China: It’s also likely that some lawmakers will ask about USMCA or other trade topics. Kind said he’s curious what Lighthizer will say about USMCA, adding it will be “interesting to gauge his reaction, just how flexible the administration is trying to be in accommodating members’ concerns.” The hearing will be livestreamed at 10 a.m. here.
SEADE: MEXICO WANTS STEEL TARIFF DEAL IN MARCH: Mexico hopes to strike a deal with the Trump administration by the end of March that would eliminate U.S. tariffs on steel and aluminum and clear the way for congressional approval of the new U.S.-Mexico-Canada Agreement, Mexican Undersecretary for North America Jesús Seade said Tuesday.
"The steel thing has to be solved in the next few weeks," Seade said in a interview with POLITICO. "It's really a condition for launching the ratification process in earnest." Mexico would rather not replace the tariffs with an import quota but is open to discussing that possibility, as long as the quota is above historical trade levels and the United States agrees to one as well, he said.
"Any notion of a quota has to be really, really balanced ... not quotas going one way and not the other” since Mexico imports more steel and aluminum from the United States than it exports up north, he said. Seade also acknowledged the Trump administration lacks the votes in Congress to win approval of the USMCA, but he rejected the idea of reopening the agreement to address Democrats’ concerns about the enforceability of labor provisions. More here.
‘Disastrous’ tomato fight: The Commerce Department’s recent decision to abandon a six-year-old tomato trade agreement with Mexico “was a pretty disastrous turn of events,” Seade added. “It’s completely contradictory to the relationship we’re trying to build with the new treaty.” Mexico still hopes to negotiate a new “suspension agreement” with the United States rather than face anti-dumping duties on its tomato exports, he said.
150 GROUPS PRESS TRUMP TO FORMALIZE DELAY FOR CHINA TARIFF HIKE: A coalition of more than 150 organizations representing U.S. manufacturers, farmers and other industries is urging the Trump administration today to publish a Federal Register notice that confirms the president’s decision to delay a tariff increase on China before March 2.
In a letter to Trump, the broad coalition — which includes the American Chemistry Council, American Petroleum Institute and National Foreign Trade Council — asks that the notice be immediately published “to provide certainty to the business community, making clear to all stakeholders that tariffs do not automatically increase on March 2.”
USTR did not respond to a request for an update on when the agency will submit the notice to delay the duty increase.
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GRASSLEY: STILL NO UPDATE ON 232 AUTO PROBE: Senate Finance Chairman Chuck Grassley said Tuesday that he still has not received details from the White House on the contents of the Commerce Department investigation into whether imports of autos and auto parts pose a threat to national security.
“We want to read it. We haven’t gotten that information yet,” the Iowa Republican said in a call with reporters. “But I intend to keep pushing until we get a copy of it.”
Grassley has repeatedly dismissed the idea that imported autos are a threat to national security. He has urged Trump to “heed my call to forgo the auto tariffs and focus on opening new markets.”
How about USMCA? Grassley indicated that he would like to soon get a roadmap of USMCA changes that Democrats want in exchange for their support. “I would like to have very specifically set out what it takes in the area of environment, labor and enforcement to satisfy the Democrats,” he said. More here.
LAWMAKERS RAISE CONCERNS OVER CAMBODIA’S TRADE TREATMENT: A bipartisan group of House lawmakers is pushing new legislation that would require the Trump administration to review the preferential trade status the U.S. provides to Cambodia. Led by Reps. Alan Lowenthal (D-Calif.) and Steve Chabot (R-Ohio), the Cambodia Trade Act would also mandate that the administration use the findings of a review of the country’s practices to determine whether its benefits under the Generalized System of Preferences program should be withdrawn, suspended or limited. It follows identical legislation introduced by Sens. Ted Cruz (R-Texas) and Chris Coons (D-Del.) in January. Read the bill here.
TRADE REMEDY CORNER
CHINESE STEEL RACKS EDITION: The Commerce Department announced on Tuesday that it has found evidence that certain imported steel racks from China are being dumped in the United States. In a preliminary determination, Commerce assigned a dumping margin of 18.08 percent to 144.50 percent against imports of Chinese steel racks from mandatory respondent Nanjing Dongsheng Shelf Manufacturing Co. Ltd. and all other exporters from China.
Commerce will instruct U.S. Customs and Border Protection to require cash deposits at the same rate as the preliminary dumping margins. The petitioner, Coalition for Fair Rack Imports, estimates that imports of steel racks from China were valued at approximately $200 million in 2017, Commerce said.
The agency is scheduled to announce a final determination on the case on or about July 18.
COMMERCE INITIATES $1.9 BILLION STEEL CASE: Commerce also announced Tuesday that it was launching an investigation that could lead to steep anti-dumping and countervailing duties on around $1.9 billion worth of imports of fabricated structural steel coming from Canada, Mexico and China. The U.S. International Trade Commission held a hearing on the case on Monday and is expected to vote in mid-March on whether there is enough evidence that domestic producers have been harmed by the imports for the case to proceed.
INTERNATIONAL OVERNIGHT
— The U.K. will protect meat farmers with tariffs in the event of a no-deal Brexit, POLITICO Europe reports.
— Maclean’s Magazine takes a look at what’s next for Canada’s chief NAFTA negotiator after a year of hammering out USMCA.
THAT'S ALL FOR MORNING TRADE! See you again soon! In the meantime, drop the team a line: abehsudi@politico.com and @abehsudi; mcassella@politico.com and @mmcassella; dpalmer@politico.com and@tradereporter; srodriguez@politico.com and @sabrod123; jlauinger@politico.com and @jmlauinger; and pjoshi@politico.com and@pjoshiny. Also follow us @POLITICOPro and @Morning_Trade.
** A message from The Alliance for American Manufacturing: American manufacturing is booming, outpacing private sector job creation. Factories are looking to hire more than 400,000 workers. The steel industry is adding jobs and making new investments; imports are down and production is up. Congress shouldn’t roll back this progress by weakening trade enforcement. Opening our communities to a flood of imported Chinese steel will undermine our national security and jobs. Learn more here. **
https://www.politico.com/newsletters/morning-trade/2019/02/27/lighthizer-on-the-hill-400800
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Wheeler Wins First Test Toward Senate Confirmation as EPA Chief
Feb 27, 2019 | BNA Daily Environment Report
By Dean Scott
Andrew Wheeler’s final confirmation vote to head the EPA could come later this week after his nomination cleared a procedural vote Feb. 27.
The 52-46 cloture vote in favor of Wheeler’s nomination signaled a deep split in the Senate over President Donald Trump’s nominee, who won unanimous support from Republicans. West Virginia Sen. Joe Manchin, who had voted for Wheeler as EPA deputy administrator, voted against the cloture motion.
Wheeler has been acting administrator of the Environmental Protection Agency since the July 2018 resignation of embattled Scott Pruitt.
This is Wheeler’s second Senate confirmation battle in less than a year. He was confirmed in April 2018 as EPA deputy administrator in a 53-45 vote, with the backing of Manchin and two Democrats later defeated in the 2018 election: Sens. Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.).
Sen. Tammy Duckworth (D-Ill.), who was on leave last spring and missed the vote after giving birth, voted against Wheeler on the cloture motion Feb. 27.
The Senate Environment and Public Works Committee advanced Wheeler’s nomination on a party-line vote Feb. 5.
https://news.bloombergenvironment.com/environment-and-energy/wheeler-wins-first-test-toward-senate-confirmation-as-epa-chief
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Collins to Vote Against Trump's EPA Pick
Feb 27, 2019 | The Hill - E2 Wire
By Miranda Green
Sen. Susan Collins (R-Maine) says she will vote against the confirmation of President Trump’s pick to head the Environmental Protection Agency (EPA), saying his policies are “not in the best interest” of the environment or the country’s public health.
In a statement tweeted Wednesday, Collins said she has “too many concerns” about actions acting Administrator Andrew Wheeler has overseen while leading the EPA since July
“While Mr. Wheeler is certainly qualified for this position, I have too many concerns with the actions he has taken during his tenure as Acting Administrator to be able to support his promotion,” she wrote.
“I believe that Mr. Wheeler, unlike Scott Pruitt, understands the mission of the EPA and acts in accordance with ethical standards; however, the policies he has supported as Acting Administrator are not in the best interest of our environment and public health, particularly given the threat of climate change to our nation.”
Wheeler took over as acting EPA administrator following the resignation of Pruitt, who stepped down amid a series of ethics and spending scandals.
Collins specifically pointed to the agency’s rollback of its rules on mercury air pollution, power plant pollution and car emissions as examples of policies concerning her. Wheeler oversaw the rollout and was involved in the final construction of the policy changes.
“Reducing harmful air pollutants is critical for public health, particularly for Maine which has among the highest rates of asthma in the country,” Collins wrote.
“The agency’s recent efforts to halt progress in these critical areas takes us in the wrong direction.”
The vote on Wheeler’s confirmation will be held Thursday. Trump nominated Wheeler to take over the EPA in a formal capacity in early January.
Collins in the past has been considered a swing voter. However, despite Wheeler's former energy lobbyist ties and actions he’s taken in agreement with fossil fuel industries, it’s expected that the former energy lobbyist will be confirmed handily by the GOP-controlled Senate.
https://thehill.com/policy/energy-environment/431854-sen-collins-to-vote-against-trumps-epa-pick
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DOJ Urges High Court to Retain Limited Agency Deference for ‘Certainty’
Feb 27, 2019 | Inside EPA
By David LaRoss
The Department of Justice (DOJ) is asking the Supreme Court to retain a limited form of judicial deference for EPA and other agencies’ interpretations of their rules rather than scrapping the doctrine altogether as conservatives, industry groups and others have urged, warning that deference is needed to ensure “certainty and stability” for nationwide rules.
DOJ filed a Feb. 25 response brief in the high court case Kisor v. Wilkie that agrees with opponents of the deference doctrine that it has been applied too broadly, but the department says those concerns can be addressed through strict new limits on when deference is appropriate rather than by overturning it altogether. While EPA is not involved in the case, any ruling from the justices that either narrows or terminates the deference doctrine could put major constraints on the agency’s rulemaking powers.
“[A] reviewing court should defer to the agency’s interpretation only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency’s prior views; rests on the agency’s expertise; and represents the agency’s considered view, as distinct from the views of mere field officials or other low-level employees,” DOJ argues.
It continues that regardless of concerns over its basis, scrapping regulatory deference altogether would create new problems by undermining a practice that “provides certainty and stability to regulated parties who rely on agency guidance documents," while opening the door to conflicting judicial decisions on what the “best” meaning of a rule is.
“Agencies must implement standards on a nationwide basis, and this Court can review only a small fraction of the decisions reviewing agency interpretations. Absent Seminole Rock deference, courts’ disagreements over the best or fairest interpretation of an ambiguous text could significantly undercut the uniformity of federal law,” the brief says.
At issue in Kisor is whether the justices should overturn the precedent set by the 1945 case Bowles v. Seminole Rock & Sand Co. and its 1997 successor Auer v. Robbins, which say judges should defer to agencies’ “reasonable” interpretations of ambiguous provisions in their rules.
The petitioner in Kisor is a Marine Corps veteran challenging the Department of Veterans Affairs’ reading of its rules that govern disability benefits, but a decision in his favor would go far beyond those policies and potentially open EPA to new lawsuits challenging its implementation of any rules seen as ambiguous. Industry groups and states cited a slate of such policies in recent amicus briefs calling on the court to overturn Auer and Seminole Rock.
Those calls follow a years-long push from conservatives and industry to limit judicial deference to agencies more generally, including the landmark Chevron principle that applies when regulators interpret ambiguous statutory provisions and has been a fixture in litigation over major EPA rules for decades.
Judicial Basis
But while the Trump administration is agreeing with the broader GOP and its allies that Seminole Rock deference “raises significant concerns,” its new brief pushes for limits on the doctrine rather than an outright reversal.
DOJ argues that in their current form Seminole Rock and Auer seem to conflict with the Administrative Procedure Act (APA), which sets out a mandatory notice-and-comment process for binding legislative rules but allows agencies to avoid that process when issuing guidance or other “interpretive” rules.
“Interpretive rules, unlike legislative rules, do not carry the force and effect of law and are exempt from notice-and-comment procedures. When a reviewing court gives controlling weight to an interpretive rule under Seminole Rock, it arguably treats the interpretive rule as though it were a legislative rule,” the brief says.
It continues that the basis for that principle is “unclear,” “not well grounded historically,” and creates “tension with the APA’s distinction between legislative and interpretive rules."
“In light of these substantial concerns, the Court should impose and reinforce significant limits on Seminole Rockdeference,” DOJ says.
But it continues that repealing the doctrine altogether would be unwise, both because past decisions have relied on it so heavily and because eliminating regulatory deference would open the door to regional conflicts on the proper meaning of rules.
“Seminole Rock and Auer are now part of ‘a long line of precedents’ reaching back for decades. They have been invoked in thousands of reported decisions in the federal courts. Private parties have ordered their affairs in reasonable reliance on that settled body of law. Overruling Seminole Rock deference could call into question those decisions and would invite litigants ‘to challenge even longstanding and judicially accepted agency interpretations on the ground that the interpretation, although reasonable, is not the most persuasive’ one to a particular court,” the brief says.
Deference Limits
DOJ in its filing urges the justices to set four new limits on Seminole Rock and Auer deference, arguing that the precedents should only apply to interpretations that do not create new conflicts with past agency practices, gave fair notice to regulated entities of the change, were crafted based on the agency’s expertise, and were issued by agency leadership rather than individual staffers who might not speak for the government as a whole.
The administration says those limits would preserve EPA and other agencies’ ability to issue new guidance as needed without undermining the regulated community’s ability to rely on existing published interpretations. If regulators intend to change their substantive readings of rules, DOJ says, it would have to do so through a new rulemaking instead of a reinterpretation.
“[T]he agency’s authority to revise, alter, or reconsider its interpretation of its regulations is not at issue. The only question is whether the agency’s new interpretation should receive binding deference. It should not when its interpretation is inconsistent with its prior views or fails to provide regulated parties with fair notice. In those circumstances, if agencies want their views to be accorded binding deference, they may utilize the APA procedures specifically designed to provide notice to, and allow participation by, regulated parties,” the brief says
https://insideepa.com/daily-news/doj-urges-high-court-retain-limited-agency-deference-%E2%80%98certainty%E2%80%99
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Researchers Find Breakthrough in 'Upcycling' Plastic
Feb 28, 2019 | E&E Climatewire
By John Fialka
Scientists have found a new way to recycle one of the world's most ubiquitous and long-lasting waste products: single-use plastic bottles.
They've made it into a higher-value product using a process that also reduces both energy use and greenhouse gas emissions.
The process developed by researchers at the National Renewable Energy Laboratory (NREL) is called "upcycling" because it results in two types of fiber-reinforced plastics that are stronger and have a higher value in longer-lived products such as snowboards, automobile parts and even wind turbine blades.
"Most recycling today is downcycling," said Gregg Beckham, a senior NREL research fellow and part of the team that worked on the project. "There's very little financial motivation."
The result has been that mountains of plastic bottles — about 6.3 billion tons — have been thrown into landfills. A substantial additional amount is swirling around in the world's oceans.
Despite recycling programs launched by the United States and other countries, no nation has reclaimed more than 60 percent of bottles. The U.S. effort reclaims 30 percent, close to the world's average. Only 15 percent of the waste has a second life as bottles because of contaminants, loss of transparency and other factors that cheapen their value.
The new process partly deconstructs the bottles and then reuses the energy in the petroleum-based feedstock that made them in the first place. The resulting material can be reinforced with fiberglass. The hoped-for result could make the tossed-away bottle as much as five times more valuable than it was.
The result "incentivizes the economics of plastics reclamation," noted another NREL researcher, Nic Rorrer. It could pull more bottle material, which is called polyethylene terephthalate, or PET, out of the dumps and oceans and turn it into two types of fiber-reinforced plastics that are the raw material for higher-value products.
The transformation is estimated to save 57 percent of the energy normally needed to make the "upscaled" products and reduce the greenhouse gases by 40 percent, when compared with the standard way they are now made, according to NREL.
PET is the largest produced polyester globally; there are 26 tons of it made annually. It's used in carpets, clothing and single-use bottles. So far, the largest attempt at recycling it has been with bottles.
A full account of the new process was published yesterday in the scientific journal Joule.
https://www.eenews.net/climatewire/2019/02/28/stories/1060122641
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(ACC Mentioned) Chemical Law’s Worker Safeguards Ditched by EPA, Advocates Say
Feb 28, 2019 | BNA Daily Environment Report
By Pat Rizzuto
The EPA allowed a new ingredient for wood panel glues to be sold in December despite the potential that the compound might cause cancer.
It also let on the market a separate new paint ingredient that the agency’s own analysis said may potentially harm workers’ neurological systems and put their children’s development at risk.
These two cases illustrate a much broader “insidious” approach the Environmental Protection Agency is using as it reviews new chemicals, Jonathan Kalmuss-Katz, an attorney with Earthjustice, told Bloomberg Environment. That approach fails to protect mechanics, construction, and other workers in dozens of isolated decisions it makes, he said.
The EPA is abdicating its worker protection responsibilities across the board, agreed Richard Denison, lead senior scientist with the Environmental Defense Fund, who recently blogged about the situation.
The worker-safety issue hasn’t sparked the public outrage it warrants, Kalmuss-Katz said. That, he said, is because there hasn’t been one single policy statement that people can point to or offer opinions on.
The EPA answered such allegations by describing steps it takes to protect workers.
Democratic Interest
But Democrats who now hold the House’s majority are paying attention.
Rep. Paul Tonko (D-N.Y.), chairman of the House Energy and Commerce’s Subcommittee on the Environment and Climate Change, is considering exploring worker-safety issues as part of his oversight of EPA’s chemical policies, aides to Tonko said.
Worker safety concerns captured the most attention across all of the public comments that industry, environmental health, and labor advocates filed in nine batches of new chemical rules that the EPA has proposed since last August.
The nine batches of “significant new use rules,” or SNURs, would cover 362 new chemicals. That’s a subset of the more than 2,601 requests chemical makers have filed since 2016 asking the agency to let them make new chemicals or new microbes that produce chemicals, according to EPA information.
The agency tracks requests since June 22, 2016, the date when the Toxic Substances Control Act amendments became law.
EPA Defends Actions
“EPA is committed to protecting public health, including protecting workers from exposure to chemicals,” the agency said in an email.
The agency analyzes the ways workers might be injured by chemicals with and without personal protective equipment, such as gloves and respirators, the EPA said.
If needed, the EPA works with chemical manufacturers to help prepare language for safety data sheets to alert employees and companies that purchase the new chemical to its potential health risks and needed protections, the agency said. Safety data sheets accompany chemicals and chemical mixtures as they move through commerce.
The agency also expects companies to comply with federal and state laws protecting workers, the EPA said.
In the case of the wood panel glue ingredient, “EPA expects that workers will use appropriate personal protective equipment (i.e., impervious gloves), consistent with the safety data sheet” prepared by the company seeking agency approval to make the new chemical, the EPA said in granting its permission.
In addition to possibly being carcinogenic, the glue ingredient might harm the liver and kidneys, and make it harder for workers to have children at sufficient levels of exposure, the agency’s analysis found.
The sale of the industrial and architectural paint chemical was based on the presumption that workers would be protected with gloves, respirators, and other equipment, Kalmuss-Katz said.
Safety Data Sheet ‘Hallucination’
The EPA’s worker safety statements show it doesn’t understand the workplace, said David Michaels, who served as assistant secretary of labor of the Occupational Safety and Health Administration during the Obama administration.
“The idea that a direction in a safety data sheet would be followed by every employer is a hallucination,” he said.
OSHA’s Hazard Communication Standard—revised in 2012 under Michaels’ watch—requires companies to make safety data sheets available to workers, he said.
The “informational rule” does not, however, require the employer to use ventilation or other recommended engineering controls or provide personal protective equipment, Michaels said.
Congress recognized “workers deserve as much protection as everyone else” through provisions of the 2016 TSCA amendments that require the EPA to examine workplace exposures, he said.
“This administration is abandoning that concept,” Michaels said.
Obligations Imposed
Neither the U.S. Chamber of Commerce, National Association of Manufacturers, nor the Society of Chemical Manufacturers and Affiliates replied to Bloomberg Environment’s requests for comment on the worker-safety allegations against the EPA.
Safety data sheets impose obligations on employers, said Richard E. Engler, director of chemistry for the Bergeson & Campbell PC law firm.
The firm manages the TSCA New Chemicals Coalition in which chemical manufacturers share experiences with and concerns about the agency’s new chemicals program.
The safety sheets let employers know about chemical hazards they must protect against, he said.
Inconsistent Controls
The Environmental Defense Fund said the agency is using different controls for the same new chemicals.
The group referred to a combination of tools the EPA uses to protect workers that might be exposed to a specific new chemical that a manufacturer wants to make.
In some cases, the EPA negotiates with the company that originally wanted to introduce the new chemical into commerce, and that company agrees to use specific engineering controls or other means to protect its workers. That agreement becomes an enforceable “consent order.”
The agency then proposes a “significant new use rule” to impose those same controls on any other company making or using the same chemical in the same way as the first one did—keeping the competitive playing field level.
If the original manufacturer—or other chemical producers or processors want to make or use the new chemical in any other way—they must first get agency permission.
EDF’s chemical policy analysts have documented dozens of discrepancies between the protections the EPA requires in specific consent orders and the corresponding new use rules for the same chemical, Denison said.
For example, EDF described six specific instances where consent orders and their rules were different in comments focused on a batch of rules the agency proposed last November for 66 chemicals.
Some chemical manufacturers have flagged inconsistencies in their comments as well.
EPA Doing ‘Good Job’
The agency may have legitimate reasons for proposing a SNUR that differs in some ways from its corresponding consent order, the American Chemistry Council said in an email.
Manufacturing a chemical might require one type of engineering controls, it said. But companies that use, or “process,” that same chemical might require different controls to achieve an equivalent protection for workers, it said.
“EPA does a good job of identifying workplace exposures,” said Lynn L. Bergeson, managing partner of Bergeson & Campbell PC in an email.
If consent orders and their corresponding new use rules don’t match, parties can urge EPA to align them as it serves everyone’s interest to have the same controls apply, she said.
On potential inconsistencies, Bergeson said, “I am hard-pressed to classify this issue as a recurrent problem.”
She added that the agency’s policies will continue to evolve as its proposed rules are finalized.
https://news.bloombergenvironment.com/environment-and-energy/chemical-laws-worker-safeguards-ditched-by-epa-advocates-say
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(ACC Mentioned) Toy Industry Presses for Harmonisation in Vermont Reporting Rule
Feb 28, 2019 | Chemical Watch
By Kelly Franklin
Toy manufacturers are pressing for changes to Vermont’s children’s product reporting rule to increase harmonisation with other state’s schemes, even while battle lines harden over other potential amendments.
Comments from industry and consumer advocacy groups have come in response to a proposal to update the state's Chemicals of High Concern in Children’s Products Rule. The scheme requires manufacturers to disclose information about products containing any of 66 specified substances of concern.
The Toy Association said the proposal to expand the list of reportable chemicals to include those addedunder Washington’s plan "would help harmonise Vermont’s chemical regulation with similar programmes in other states".
But it objected to plans not to remove three substances delisted in Washington – phthalic anhydride, D4 and molybdenum. And it said that the proposed requirement to report substances that could degrade into a listed chemical would "heavily burden manufacturers without providing any additional safety for consumers" and be "out-of-step" with other state disclosure programmes.
The trade group, however, welcomed a suggested amendment to require reporting only every two years, rather than mandating pre-market reporting. The latter, it said, "is not consistent with any other children’s chemical reporting requirement in the country and is not necessary to achieve the objectives of the programme".
But comments submitted on behalf of the Vermont Public Interest Research Group (VPIRG), Vermont Conservation Voters and Conservation Law Foundation protested that there is "no justification for this change in policy", which they argued could result in products being on shelves for up to two years before they are reported.
"We understand that industry representatives lobbied for this change … [and] it would be more convenient for them to simply file reports every two years," wrote the advocacy groups. "However, in balancing the interests of industry lobbyists against the wellbeing of Vermont’s children, we believe that on this issue, the [governor’s] administration has come out on the wrong side in the proposed draft."
Weight of evidence approach scrutinised
The NGOs and industry also disagreed on the process under which the state’s Department of Health evaluates whether chemicals merit listing under the scheme.
The American Chemistry Council said it supports the use of best available science and weight of evidence approaches in evaluating substances, and risk-based criteria for making regulatory decisions.
But the NGOs argued that a weight of evidence approach could result in a "staggering" regulatory burden and financial cost to the Department of Health, should it be required to examine virtually every study ever conducted on a topic.
The groups have continued to advocate for an approach outlined in legislation (S 103) that was narrowly defeated last year after it was vetoed by the governor. This would remove reference to weight of evidence and would rather direct the health commissioner to use independent and peer-reviewed scientific research when determining if substances meet listing criteria.
In their comments, the NGOs acknowledged that adopting such an approach may not be possible unless the law is amended, but they said that they will again be pressing for such a legislative change this year through a recently introduced bill (S 55).
The groups urged the health department "not to put a lot of resources into the implementation of the standard in this rule, because there is a high degree of likelihood that a new standard will become law this year."
https://chemicalwatch.com/74695/toy-industry-presses-for-harmonisation-in-vermont-reporting-rule
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Andrew Wheeler’s PFAS ‘Action’ Plan Is All Plan, No Action
Feb 27, 2019 | The Hill - Congress Blog
By Scott Faber
Tap water for an estimated 110 million Americans is contaminated with fluorinated chemicals known as PFAS, which are linked to cancer, thyroid disease and weakened childhood immunity. But the so-called action plan for dealing with this crisis, released last week by Acting Environmental Protection Agency Administrator Andrew Wheeler , is all plan and no action.
Here are four reasons why.
First, Wheeler’s plan does not turn off the tap of PFAS pollution. PFAS is found in firefighting foam, used in everyday products like food, cosmetics and clothing, and dumped in our air and water. But Trump’s plan does nothing to address new PFAS pollution. Instead, it promises merely to “examine” information about PFAS discharges.
Likewise, Wheeler’s plan does not block the EPA or the Food and Drug Administration from approving new PFAS chemicals to add to the more than 600 already in use. In fact, since 2002, the EPA has approved more than 100 new PFAS chemicals. One was recently approved for use at 800 sites around the nation. Separately, the FDA has approved the use of more PFAS chemicals in food packaging, even though PFAS can migrate into food, and has done nothing to restrict the use of PFAS in personal care products like makeup and lotions.
Second, Wheeler’s plan does nothing to tell us where PFAS pollution already is. Even though the plan notes that companies that manufacture chemicals, plastics, fibers, textiles, and pulp and paper may be discharging PFAS into the air and water, the plan does not add PFAS to the government’s Toxic Release Inventory, which requires disclosure of toxic discharges. Instead, Wheeler’s EPA is “considering” it. Nor does the plan accelerate efforts to monitor the extent of current contamination. Under Wheeler’s plan, water quality monitoring for PFAS in drinking water wouldn’t yield any answers until at least 2022.
Third, Wheeler’s PFAS plan does not actually commit to clean up pollution. While Sen. Tom Carper (D-Del.) secured a commitment from EPA’s Assistant Administrator to take the next step toward a drinking water standard, the plan Wheeler released last week says the EPA must still “determine” whether to force utilities to filter PFAS from our water. Wheeler’s plan is “beginning the necessary steps” to designate PFOA and PFOS as “hazardous substances” under the Superfund law, a designation that could start the cleanup process at contaminated sites. To guide this process, the EPA is “developing” recommendations. But nowhere in Wheeler’s plan is a commitment to immediately set a drinking water standard that designates PFAS as a hazardous waste under Superfund, or provide the resources needed to clean up the mess, such as funding to clean up contaminated military bases.
Fourth, Wheeler’s plan targets just two compounds in the growing PFAS family of toxic chemicals, PFOA and PFOAS. Studies of two other PFAS chemicals – HFPO, or GenX, and PFBS – may be completed this year. Studies of five other PFAS chemicals – PFBA, PFHxA, PFHxS, PFNA and PFDA – will just be getting started, even though PFNA levels in women of childbearing age are going up.
If Wheeler were serious about addressing the crisis, he would block approval of new PFAS chemicals, end the use of PFAS in firefighting foam, and end the use of PFAS in everyday products. He would require reporting of PFAS discharges – or better yet, end PFAS discharges into our air and water – and require federal agencies to monitor PFAS in our air, water, food and bodies. And he would not wait to make a regulatory determination to set a legal limit for PFAS in drinking water under the Safe Drinking Water Act or designate PFAS as a “hazardous substance” under the Superfund law.
It’s been 10 years since the EPA last issued a PFAS action plan, and the problem has only gotten worse. As retired Marine Master Sgt. Jerry Ensminger, whose daughter died from leukemia, said: “The time to ‘investigate’ or ‘consider’ whether and how to address PFAS contamination is long past. The time for weasel words is over.”
We know these chemicals are bad for us. We know they are in our water, food and everyday products. We know they are in our bodies, and that our children are being born with PFAS in their blood. But under Wheeler’s plan, there will be more PFAS contamination, not less.
Scott Faber is senior vice president for government affairs at the Environmental Working Group.
https://thehill.com/blogs/congress-blog/energy-environment/431914-andrew-wheelers-pfas-action-plan-is-all-plan-no-action
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Crippling Deficits Jeopardize California Toxics Agency’s Work
Feb 27, 2019 | BNA Daily Environment Report
By Emily C. Dooley
Ballooning deficits could force the California agency in charge of overseeing hazardous waste sites to cut permitting, enforcement, and investigative efforts.
The Department of Toxic Substances Control, primarily funded by environmental fees levied on businesses, hasn’t updated its fees in 20 years.
Meanwhile, its share of toxic sites cleanups is growing, officials said during a Feb. 27 legislative budget hearing. The budget shortfall could mean fewer inspections and cleanup efforts, and leave communities in the dark about toxic risks in their neighborhoods.
The department is in “crisis mode” and “disarray,” according to Jared Blumenfeld, secretary of the California Environmental Protection Agency, who oversees it,
Structural Deficits
The accounts for cleaning up hazardous wastes and for controlling toxic substances have the largest growing structural deficits.
The hazardous waste account ended the 2017-18 fiscal year with a $4.6 million balance, but it will have an estimated $12.4 million deficit in the coming year, Shawn Martin, principal fiscal and policy analyst in the state Legislative Analyst’s Office, said.
“We will have to cut, especially in our hazardous waste programs,” if those deficits are not reversed, Meredith Williams, the Department of Toxic Substances Control’s acting director, said.
There are 9,800 orphan sites in California where no responsible parties have been identified or investigated to determine the extent of the contamination, state officials said.
“We don’t know the toxic impact on the communities,” said Blumenfeld, who was appointed in January.
New Accounting
A transition to a new accounting system has also stymied efforts to accurately account for costs and revenue. Permits and environmental reviews are also delayed. And in some cases, polluters don’t pay their fair share because fees are based on 1998 regulations, officials said.
“I’m very concerned about some of the accounting, transparency and financial issues,” Sen. Ben Allen (D) said.
The department is working with the state Department of Finance to evaluate its accounting issues and ongoing deficit. A report should be ready by May, said Francesca Negri, the toxic substance department’s chief deputy director.
“We need polluters to pay,” said Sylvia Arredondo with Communities for a Better Environment. “For far too long our communities have been paying with their lives.”
https://news.bloombergenvironment.com/environment-and-energy/crippling-deficits-jeopardize-california-toxics-agencys-work
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A Gap Remains in the Circular Economy Conversation: Toxic Chemicals in Packaging
Feb 27, 2019 | Environmental Defense Fund
By Boma Brown-West and Tom Neltner and Michelle Harvey
This is the first blog in a series evaluating the challenges associated with single-use food packaging waste.
This week Walmart joined a growing number of companies that are trying to advance the circular economy for packaging. Like previous commitments from Nestle, Coca-Cola and McDonald’s, Walmart is stepping up its efforts to use more recyclable packaging, incorporate more recycled content, and accelerate development of collection and recycling infrastructures. EDF has a long history fighting for greater and smarter plastics recycling, so we are pleased to see more companies working to eliminate plastic packaging waste from our environment. However, something is often missing from their statements: commitments for safer packaging free of toxic chemicals.What defines safer packaging?
There are many facets to sustainable packaging: recyclability, reusability, lower material and energy inputs, and the avoidance of toxic chemicals. A significant amount of virgin plastic used in packaging currently contains toxic chemical additives such as ortho-phthalates or contaminants such as heavy metals. These chemicals have been linked to diseases and health disorders, such as reproductive problems and impaired brain development. When tainted plastic packaging is reused or recycled, these toxic chemicals persist and may accumulate to worrisome levels until the packaging is retired, posing long-term threats to our health.
Why the urgency?
In 2017, China announced that it would stop accepting plastic waste imports, which upended long-term waste strategies of Western companies. Greater attention on plastic waste in our oceans also led more companies to publicly address the plastic waste problem. To date, more than 250 companies, representing 20% of all plastic packaging produced globally, have joined the Ellen MacArthur Foundation’s New Plastics Economy Global Commitment, an ambitious campaign to reduce plastic waste in our environment by 2025. Leading food producers also announced a plan to invest $100 million to combat plastic in the ocean and advance the circular economy. This momentum is huge and desperately needed to fix our waste problem.
One of the six principles of the New Plastics Economy vision calls for all plastic packaging to be “free of hazardous chemicals,” and for “the health, safety, and rights of all people involved [to be] respected.” Yet, no company has set specific goals to meet this crucial principle. This is a concern because if participating organizations ignore setting specific goals for safer packaging, they may undermine the broader success of their other circular economy efforts by perpetuating toxic chemicals in the materials stream.
Many companies stepping up efforts are also part of the food supply chain. As we’ve explored before, one major way that toxic chemicals can enter our food is by migration from food packaging. For example, FDA studies have shown increased levels of perchlorate, an additive in plastic dry food packaging, appearing in our food, including baby food. Exposure to perchlorate threatens children’s brain development.
We want higher recycling rates of food packaging, and we want safer food.
Eliminating the use of toxic chemicals in virgin packaging is needed to clean up the recycling stream and protect our food and our families.
In this series, we’ll dig deeper into the options available for companies to meet their sustainable packaging goals while also minimizing the presence of toxic chemicals. Stay tuned.
http://blogs.edf.org/health/2019/02/27/missing-recycling-efforts-circular-economy-conversation/#more-8547
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J&J Must Defend Talc Claims in New York State Court
Feb 27, 2019 | BNA Daily Environment Report
By Peter Hayes
Johnson & Johnson will have to defend asbestos exposure claims in New York state court after failing to show that a talc maker was fraudulently added to the suit to defeat federal jurisdiction.
The allegations in the complaint against Kolmar Laboratories Inc. are sufficient to meet the pleading standards under New York law, the U.S. District Court for the Southern District of New York said Feb. 26.
Defendants typically prefer to litigate in federal court to avoid inconsistent state-court rulings; plaintiffs may view state courts as better positioned to enforce state law protections.
The court also rejected J&J’s argument that Kolmar is shielded from suit as a “contract manufacturer” of J&J’s Baby Powder.
Kolmar, to successfully assert the contractor immunity defense, would have to show that it made the talc products according to someone else’s “plans and specifications,” which were not “so apparently defective” that a prudent maker would have been on notice of the dangerous defect, the court said.
But Kolmar hasn’t even asserted the defense, let alone proved it, the court said.
The plaintiff, Laura Shanahan, alleges her exposure to various asbestos-containing talc products, including J&J Baby Powder, caused her to develop mesothelioma.
Shanahan filed suit in state court and J&J removed the case to federal court. It asserted federal jurisdiction on the ground that no two parties are citizens of the same state if the claims against Kolmar are dismissed.
The court granted Shanahan’s motion to remand the case to state court because she and Kolmar are both citizens of New York.
The complaint alleges Kolmar “engaged in tortious conduct through the manufacture, design, testing, supply, labeling and distribution of asbestos-containing talc products to which Ms. Shanahan was exposed.”
Judge Jesse M. Furman issued the opinion.
Levy Konigsberg LLP, and Weitz & Luxenberg, P.C., represent Shanahan.
Webb & Tyler LLP represents Johnson & Johnson.
Mcglinchey Stafford, PLLC represents Kolmar Laboratories.
The case is Shanahan v. Kolmar Labs., Inc., 2019 BL 62862, S.D.N.Y., No. 18-CV-8317, 2/26/19.
https://news.bloombergenvironment.com/environment-and-energy/j-j-must-defend-talc-claims-in-new-york-state-court
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Bayer Faces Mounting Weedkiller Lawsuits Amid Sweeping Restructuring
Feb 27, 2019 | Wall Street Journal
By Ruth Bender
Bayer AG said the number of plaintiffs suing over its weedkillers had risen by a further 1,900 over the past three months, adding to the legal pressure on the German pharmaceuticals and chemicals company as it navigates a broad restructuring of its businesses.
The company, which makes aspirin, chemicals and seeds, also posted a net loss of €3.92 billion ($4.46 billion) for the fourth quarter compared with a profit of €148 million a year earlier, most of which resulted from write-offs for consumer-health brands it is selling, a pharmaceuticals plant it is closing and costs linked to acquiring U.S. agriculture giantMonsanto Co. last year.
Still, shares closed up 4.2% on Wednesday, after Bayer reported better-than-expected sales. That offered investors a break from a monthslong share rout, driven to a large extent by the company’s growing legal jeopardy over the world’s most widely used herbicide.
Fourth-quarter sales rose to €11.06 billion from €8.6 billion a year earlier, boosted by the integration of Monsanto, which largely offset declines at Bayer’s consumer-health division.
Late last year, Bayer unveiled a sweeping reorganization, including plans to cut 10% of the company’s workforce. The restructuring came months after Bayer sealed its $63 billion purchase of Monsanto. The acquisition brought the U.S. company’s glyphosate-based weedkiller business, including Roundup, into Bayer’s portfolio.
Shortly after Bayer closed the deal, a California jury awarded $289.2 million to a plaintiff who alleged in state court that Roundup caused his cancer. A judge later reduced the award to $78.5 million, but the courtroom loss was a surprise that investors interpreted as opening Bayer up to potentially costly payouts.
Bayer is appealing the verdict but the legal battle has cast a cloud over the German company’s prospects that analysts say could take months, if not years, to dissipate. Its stock has fallen more than 27% since the courtroom defeat.
Another test case for Bayer opened up this week, this time in federal court in California. Six other trials are scheduled to begin in 2019.
Bayer said Wednesday that as of late January it faced a total of 11,200 plaintiffs over its glyphosate products, compared with 9,300 at the end of October. Bayer has rejected the allegations, arguing that there are numerous studies that demonstrate the safety of glyphosate and its products.
“We have the science on our side and will continue to vigorously defend this important and safe herbicide for modern and sustainable farming,” Chief Executive Werner Baumann said. He warned though that it would take some time to get more clarity over the outcome as the first trials were only starting.
Mr. Baumann also said Bayer was “anything but happy” about the company’s share price. But he pointed to Wednesday’s market reaction as a sign that investors were beginning to acknowledge the underlying value of the company.
“Fifteen more days like that and the world will be fine again,” he said.
Analysts expect shares to remain under pressure until more glyphosate cases have been tried in court to give a sense of how big a financial burden the litigation could or couldn’t become for Bayer.
In a sign of the complications ahead, Bayer booked a provision of €613 million in the fourth quarter mainly for legal defense costs expected for the next three years, up from €88 million in the same quarter a year earlier. Bayer didn’t break down the figure by legal challenges, but finance chief Wolfgang Nickl said glyphosate represented a significant proportion. Bayer hasn’t provisioned for potential plaintiff payouts.
While all eyes are on the court cases, Bayer is forging ahead with its restructuring plan aimed at saving costs, externalizing research and development in its drugs business and fixing declining sales in consumer health.
Mr. Baumann said Bayer aimed to complete the sale of underperforming consumer brands Dr. Scholl’s foot care and Coppertone sunscreens by the end of the year, while the sale of a stake in chemicals-park operator Currenta was “very advanced.” He added that the disposal of Bayer’s animal-health business should fetch “a high price.”
https://www.wsj.com/articles/bayer-faces-mounting-weedkiller-lawsuits-amid-sweeping-restructuring-11551257970?mod=searchresults&page=1&pos=5
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EU Waste-Handling Spat Jams Up Pact on Persistent Toxics
Feb 27, 2019 | BNA Daily Environment Report
By Stephen Gardner
Plastics recyclers in the European Union are awaiting the outcome of a dispute between the bloc’s member countries over the treatment of waste that contains highly hazardous, internationally restricted chemicals.
The European Parliament’s environment committee was slated to have voted Feb. 27 on a draft law that includes provisions on the substances in waste.
But in an unusual development, the vote was postponed at the last minute because of a renewed disagreement among EU countries on the issue.
The draft law would update the EU rules to bring them into line with the latest developments on the United Nations Stockholm Convention on Persistent Organic Pollutants (POPs), in particular in relation to the brominated flame retardant decabromodiphenyl ether (decaBDE).
Flame RetardantDecaBDE, which is toxic and accumulates in the environment and the food chain, was listed in the Stockholm Convention in 2017.
The listing means signatories are required to ban or limit its use, and to apply special measures when managing waste containing the substance.
The chemical was used widely as a flame retardant in plastics and textiles as well as electrical and other products such as televisions, refrigerators, and cars.
In the EU, decaBDE is now restricted under the REACH chemicals law (Regulation No. 1907/2006 on the registration, evaluation, and authorization and restriction of chemicals) and under laws on chemicals in electrical and electronic goods.
But to ensure plastics containing decaBDE can be recycled—rather than being subject to special waste management measures as required under the Stockholm Convention—the EU should set a limit allowing trace amounts of decaBDE in recycled plastics, Chaim Waibel, a spokesman for industry group Plastics Recyclers Europe, told Bloomberg Environment on Feb. 27.
Provisional Agreement UndoneNegotiators from the European Parliament and the Council of the EU—which represents the governments of member countries—provisionally agreed on a version of the law Feb. 19.
That agreement would have set a maximum limit of 10 milligrams per kilogram for decaBDE in recycled plastics, and a maximum level of 500 mg/kg for the cumulative presence of decaBDE and similar substances also covered by the Stockholm Convention.
Under the provisional agreement, certain uses of decaBDE in aircraft and motor vehicles would also be allowed.
The European Parliament’s environment committee was scheduled to ratify that agreement Feb. 27, a step that is normally a formality in EU lawmaking.
A number of EU countries raised objections about the broader waste management requirements set out in the draft EU law, arguing that the thresholds for POPs in waste above which it should be subject to special and more costly treatment had been set too low in the provisional law.
Under the Stockholm Convention, waste containing POPs should be handled in line with the U.N. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which has developed extensive guidance on waste disposal methods and secure waste storage.
“Effectively, they’ve reneged on the provisional agreement; in the council they’re quite split,” Jack Berringer, a spokesman for Julie Girling, a British lawmaker who is the European Parliament’s lead negotiator on the draft EU law, told Bloomberg Environment Feb. 27.
The Council of the EU told Bloomberg Environment in a statement Feb. 27 that countries would be asked to look at the draft legislation again on March 1.
Recycled Plastic ConcernOn decaBDE in recycled plastics, Waibel said the provision allowing the presence of the substance would prevent incineration of recyclable material.
But the provision allowing a certain amount of decaBDE puts the EU at odds with the Stockholm Convention, which does not provide for any exemptions for decaBDE, Jindrich Petrlik, head of the toxics program at Czech environmental group the Arnika Association, said Feb. 27.
The EU rule could result in plastics containing decaBDE being used to make toys or other products, Petrlik said.
In terms of allowing the exemption, “no one can punish the EU because there is no compliance mechanism agreed under the Stockholm Convention,” he said.
DecaBDE could largely be removed from plastic during the recycling process, and the resulting plastics “can be sold safely in the market,” Waibel said.
Plastic recycling companies Resilux NV, CeDo Recycling BV, and Stena Recycling AB didn’t respond to requests for comment.
https://news.bloombergenvironment.com/environment-and-energy/eu-waste-handling-spat-jams-up-pact-on-persistent-toxics
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Texas Lt. Gov. Dan Patrick Weighs in on LNG Debate in Brownsville
Feb 27, 2019 | Houston Chronicle
By Sergio Chapa
Texas Lt. Gov. Dan Patrick is asking federal regulators to approve a permit for a proposed liquefied natural gas export terminal at the Port of Brownsville.
In an open letter made public on Tuesday, Patrick asked Federal Energy Regulatory Commission Secretary Kimberly Bose to approve the proposed Annova LNG project along the Brownsville Ship Channel.
A subsidiary of Chicago power generation company Exelon, Annova LNG is seeking permission from state and federal regulators to build a $3 billion plant that would take natural gas from various shale plays around the United States and produce 6 million metric tons of LNG per year that would be exported to customers around the globe.
FERC officials are not expected to make a permit decision until July. In his letter, Patrick wrote that the proposed project would create jobs and bring economic benefits.
"This project is not only expected to create 700 construction jobs, equivalent to almost $325 million in direct labor income, but also expected to create 165 high-paying permanent jobs for the people of our state," Patrick wrote.
Annova LNG and two other export terminals proposed at the Port of Brownsville face stiff opposition from a coalition of environmentalists, fishermen, shrimpers and community groups working under the banner Save RGV From LNG.
FERC officials released Patrick's letter hours after Save RGV From LNG delivered more than 1,100 public comments filed with the Texas Commission on Environmental Quality.
In the aftermath of the partial federal government shutdown in December and January, FERC officials reopened its public comment period for the Annova LNG project through March 13.
In his letter, Patrick wrote that Annova LNG has made multiple changes to the project to address concerns by environmentalists and other opponents.
"After collaborating and working closely with various local and federal environmental stakeholders, Annova LNG has modified its layout to create an 185-acre environmental conservation corridor to avoid impacting over 100 acres of wetlands," Patrick wrote. "Additionally, by proposing to restore and enhance over 250 acres of wetlands and shallow water habitats, the efforts would rebuild tidal exchanges and estuarine habitats, lost when the Brownsville Ship Channel and State Highway 4 were constructed."
Patrick has shown support for the liquefied natural gas industry in the past. The lieutenant governor wrote a June 2016 letter to FERC in support of Texas LNG, another export terminal proposed to be built at the Port of Brownsville.
https://www.chron.com/business/energy/article/Texas-Lt-Gov-Dan-Patrick-weighs-in-on-LNG-13648841.php
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House Democrats Want Answers on Interior’s Oil and Gas Waivers
Feb 27, 2019 | BNA Daily Environment Report
By Stephen Lee
Two House Democrats are asking an Interior Department agency for more information about why it gave oil and gas companies waivers to a rule designed to prevent sudden overflows.
Reps. Raul Grijalva (D-Ariz.), chairman of the Committee on Natural Resources, and Alan Lowenthal (D-Calif.), chairman of the energy subcommittee, made the request in a Feb. 26 letter to Bureau of Safety and Environmental Enforcement Director Scott Angelle.
Lisa Lawrence, press secretary at the Bureau of Safety and Environmental Enforcement, told Bloomberg Environment that none of the 1,652 waivers lets companies disregard the 2016 Well Control Rule altogether. Rather, they were requests for alternative ways to comply, Lawrence said.
Proportionally, more of the waivers actually came during the Obama administration, according to Lawrence. BSEE’s data show an average of four waivers per day under President Barack Obama, but only 2.3 per day under President Donald Trump during a period spanning Aug. 1, 2016, to March 22, 2018, Lawrence said.
The rule requires third-party inspections and real-time status reports of valves known as blowout preventers. The Trump administration is now working to finalize further revisions. The waivers were first reported by Politico.
The failure of a blowout preventer was linked to the 2010 blowout at BP Plc’s Deepwater Horizon facility in the Gulf of Mexico, which killed 11 people and caused an oil spill disaster.
One Size Fits All?
The oil and gas industry says it’s not surprising companies have requested so many variances from the rule. Every rig is unique, depending on its design and factors such as the local geology, climate, and temperature, said Erik Milito, vice president of upstream and industry operations for the American Petroleum Institute.
But the rule imposes unrealistic, one-size-fits-all requirements that, if followed, can actually be less safe than a company’s own procedures, Milito said. Each variance request must include an alternate plan that is at least as safe or safer than the standard, he said.
Lawrence said BSEE verified that each waiver would result in a solution as safe as the existing rule.
“Government folks aren’t experts in these topics,” agreed David Sarvadi, an industry attorney with Keller and Heckman LLP. “They don’t encounter difficulties that people routinely encounter in trying to comply with a standard, particularly where a standard has prescriptions that may not apply to a particular situation.”
Moreover, if BSEE has had to provide nearly 1,700 waivers or variance approvals, “that suggests they need to revise the rule,” Sarvadi said. “It’s pretty good evidence there’s something wrong with it.”
Waivers Not Necessarily Bad
The granting of a waiver “is not, in itself, necessarily a bad thing,” said Cary Coglianese, a law professor at the University of Pennsylvania.
The U.S. Code is riddled with provisions that let agencies issue waivers, because “rules, as generalizations, do not always fit every circumstance, and circumstances can change too, so that the purpose of the rule would no longer be served by the strict application of the rule,” Coglianese said.
When used responsibly, waivers can help achieve desired regulatory outcomes, he said.
“But of course, it is also possible for government officials to abuse waiver authority by granting them when they should not do so, and when the only justification is to reduce costs to industry even at the expense of the public protection the rules were intended to deliver,” he said.
Agencies also have discretion not to enforce certain standards. The U.S. Supreme Court has ruled that agencies “possess basically the same kind of discretion that prosecutors have in deciding whether and against whom to pursue enforcement action,” Coglianese said (Heckler v. Chaney).
‘Unfair’ Regulatory Framework
Environmentalists say the waivers could undermine the rule so severely that it might as well not even exist.
“If what we’re reading is true, that there’s an ongoing move for companies to ask for more and more waivers, then we’re starting to look like a developing country, where we don’t have a regulatory framework that’s fair, consistent, and credible,” said Lois Epstein, Arctic program director at the Wilderness Society.
Epstein also said she understood the need for flexible regulation.
“It’s a compromise,” she said. “You want to be sure the industry is using the most advanced technologies, which do change, and you want to give them a little bit of flexibility. But not too much, because the laggards are going to have huge problems if you make it too flexible. They’ll have incidents that are preventable.”
https://news.bloombergenvironment.com/environment-and-energy/house-democrats-want-answers-on-interiors-oil-and-gas-waivers
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Green Jobs Bill Would Prioritize Training for Minorities, Women
Feb 27, 2019 | BNA Daily Environment Report
By Bobby Magill
The federal government should give minorities and others who have suffered from pollution an opportunity to thrive in a clean energy economy, the co-founder of a renewable energy startup told a House subcommittee Feb. 27.
Gilbert Campbell, co-founder of the African American-owned Volt Energy, said minorities disproportionately suffer from the health effects of fossil fuel pollution. He urged members of a House Energy and Commerce subcommittee to advance a green energy jobs bill that prioritizes opportunities for women and minorities.
The bill, H.R. 1315, sponsored by Rep. Bobby Rush (D-Ill.), aims to create a renewable energy jobs education and training program that would encourage underrepresented groups, such as unemployed energy workers, women, and minorities, to enter the science and technology fields.
“In order to achieve our clean energy goals, we need a talented, diverse workforce,” Campbell said.
America’s aging energy infrastructure has been built at the expense of minorities, and the only equitable response is to give them opportunities as the economy transitions from one based on fossil fuels to one powered by renewables, Campbell said.
GOP lawmakers on the subcommittee were upset that the bill excluded other kinds of energy sources. And even if the legislation passes the House, it faces uncertain prospects in the Senate, where Republicans have largely committed to the Trump administration’s fossil fuel agenda.
However, the legislation gives Democrats the opportunity to talk about a diverse workforce and how that may contribute to solving climate change, two priorities for the party early in the new Congress.
Renewables, Efficiency, and Grid Training
The bill “establishes a grant program to provide funds to businesses to pay employees who are receiving training to work in the renewable energy, energy efficiency or grid modernization sectors,” Rep. Frank Pallone (D-N.J.), said at the hearing. “These areas are critically important in our efforts to combat climate change.”
Exelon Utilities CEO Anne Pramaggiore told the subcommittee that innovation in a transitioning electric power sector requires diversity, and it’s important for the company’s goals that more women and minorities enter the science, technology, engineering, and mathematics fields.
“We welcome the support offered in this bill,” Pramaggiore said.
Republicans on the subcommittee complained that the bill does nothing to promote fossil fuels and that they were left out of the process of writing it.
The bill “excludes fossil, nuclear and manufacturing altogether,” Rep. Richard Hudson (R-N.C.), said, adding that he’d keep an open mind about the bill.
Rep. Fred Upton (R-Mich.) said the bill “recycles Obama’s green jobs agenda,” wasting money.
“This legislation unfairly picks winners and losers,” Upton said.
https://news.bloombergenvironment.com/environment-and-energy/green-jobs-bill-would-prioritize-training-for-minorities-women
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Policymakers Back Long-Term CFATS Reform But Split on Rule Flexibility
Feb 27, 2019 | Inside EPA
By Ariana Figueroa
Democratic and Republican lawmakers, along with Trump administration officials, agreed during a Feb. 27 hearing on the need for a long-term reauthorization of the Department of Homeland Security's (DHS) chemical facility safety program but lawmakers appeared divided on whether to provide additional regulatory flexibility to industrial facilities.
Such divisions could make it difficult for lawmakers and the administration to reach a deal on any reauthorization of the Chemical Facility Anti-Terrorism Standards (CFATS) program before it expires in May 2020, though officials emphasized their desire for a long-term deal and a DHS official even floated the possibility of a “permanent” reauthorization.
The program, created in the wake of the 9/11 terrorist attacks, mandates that facilities report their holdings of certain chemicals to DHS and then craft plans that comply with the agency's risk-based security standards to limit the consequence of any attack.
While the program was reauthorized in 2014 for five years, lawmakers were unable to agree on a long-term reform before it expired earlier this year after Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-WI) offered a bill that would have rolled back a host of regulatory requirements.
Instead, Johnson and his House counterpart, Homeland Security Committee Chairman Bennie Thompson (D-MS) eventually agreed to a short-term extension through May 2020 but without making any reforms.
At the hearing, David Wulf, director of DHS' Infrastructure Security Compliance Division, Cybersecurity and Infrastructure Security Agency, made the case for a long term or even a permanent reauthorization, arguing in his prepared testimony that the five-year program lawmakers created in 2014 “brought stability for both the Department and the regulated community and provided stakeholders with confidence in the program’s future.
He said a multi-year authorization “provided industry stakeholders with the certainty they needed to plan for and invest in CFATS-related security measures,” gave DHS “the stability needed” to make programmatic changes and long-term resource planning decisions and “sent a clear message to potentially-covered 'outlier' facilities that the CFATS
Program is here to stay.”
Thompson and Rep. Mike Rogers (R-AL), the committee's ranking Republican, agreed on the need for a long-term reauthorization, but they appeared divided on regulatory issues.
For example, Thompson made it clear that he is still not willing to consider any easing of regulatory requirements. “I do not plan to let reauthorization become an excuse to water down regulatory requirements or diminish the overall security value of the program,” Thompson said in his opening statement. “CFATS is already designed to give flexibility and deference to facility owners and operators.”
Thompson added that the CFATS “requirements are non-prescriptive, meaning that regulated facilities can choose security measures that work for their unique environment, so long as their site security plans generally adhere to a set of risk-based security principles.”
First Responders
Thompson signaled he planned to press for requirements -- recommended by the Government Accountability Office (GAO) -- to ensure that first responders and emergency planners receive chemical data from facilities.
The issue stems from the fertilizer plant explosion in West, TX, in 2013 that killed more than a dozen people, including first responders. The Obama administration had crafted an EPA rule under the agency's Risk Management Plan (RMP) program but the Trump administration is working to repeal it.
“As a former volunteer fire fighter, I am deeply concerned that -- six years after the tragic fertilizer plant explosion in West, Texas -- we still have not yet figured out how to put the right information in the hands of the brave men and women running into a building in an emergency while everyone else is running out. When first responders show up at an incident, they need to know what’s on the other side of the door. Period,” Thompson said.
But Rogers, in his opening statement, said he wants to see “tweaks” to the program.
And when questioning Wulf, he appeared to raise concerns that CFATS may duplicate requirements of other agencies' programs, such as those overseen by EPA and the Bureau of Alcohol, Tobacco and Firearms (ATF).
Wulf said that if a facility is already doing work under a different program that happens to satisfy requirements for CFATS, then “they are not required to duplicate work enforcing CFATS.”
He also asked Wulf how he would “distinguish CFATS from other regulatory agencies,” like those at EPA and ATF.
Wulf said CFATS is a “very comprehensive, very securities focused, regulatory program. So, programs administered by EPA and OSHA focus primarily on safety. Our program is a securities program, anti-terrorist program."
A broad coalition of chemical and other industry groups urged lawmakers in a Feb. 26 letter to approve a long-term reauthorization while also calling for changes.
“We are also committed to working with this committee, and the other committees of jurisdiction, to find opportunities to keep moving CFATS forward and for improvements on how the program is implemented,” the CFATS Coalition said.
https://insideepa.com/daily-news/policymakers-back-long-term-cfats-reform-split-rule-flexibility
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First Responders Need DHS Chemical Data: House Dems
Feb 28, 2019 | BNA Daily Environment Report
By Sam Pearson
House Democrats want to share more information from a federal chemical security program with state and local first responders, they said at a hearing Feb. 27. The goal of the program is to ensure that terrorists can’t get access to dangerous chemicals.
The change is being considered as part of reauthorizing legislation for the Chemical Facility Anti-Terrorism Standards program, a Department of Homeland Security initiative that works with chemical facilities to make sure they have the right security measures in place to reduce chemical risks and prevent terrorists from exploiting them. The program nearly expired earlier this year before being extended through April 2020.
Homeland Security officials say they share information about facilities’ chemical holdings with local first responders as needed, but auditors with the Government Accountability Office found last year that 86 percent of local emergency planning committees surveyed didn’t have access. That could leave responders less prepared if a major chemical incident occurs, Rep. Bennie Thompson (D-Miss.), the chairman of the House Homeland Security Committee, said.
Any changes in CFATS could affect the 3,329 facilities subject to the department’s oversight—heavy users of more than 300 sensitive chemicals like anhydrous ammonia, chlorine, and hydrogen sulfide.
Industry groups and Homeland Security officials say the certainty provided by a longer authorization of the program makes staff more effective and helps companies make better security and investment choices. In a Feb. 26 letter to the House Homeland Security Committee, 15 industry organizations representing agriculture, energy, chemical, and utility companies reiterated their support for the program’s long-term operation.
Under CFATS, users of the listed chemicals submit information to DHS officials, who use it to determine how secure the facility needs to be. Operators can decide on their own how to make the site secure enough to prevent terrorist attacks, cyber-security threats, insider threats, and other security risks.
First Responders
Congress may be able to direct the department to shift resources from a little-used expedited approval program to help first responders, Thompson said.
Just 18 of more than 2,500 eligible chemical facilities have used the expedited approval program, David Wulf, director of infrastructure security compliance at DHS’ Cybersecurity and Infrastructure Security Agency, told the committee. Congress ordered the department to start the program in 2014 legislation in an attempt to simplify compliance. Wulf said it was “time to take a hard look at” whether it should continue.
Both House lawmakers and administration officials want to avoid the expiration of the chemical security program. That could happen if lawmakers don’t extend its authorization past April 2020 or appropriate funds to it.
To keep it alive, House lawmakers will have to cut a deal with Senate Republicans, some of whom balked at the program’s recent extension. Sen. Ron Johnson (R-Wis.), the chairman of the Senate Homeland Security and Governmental Affairs Committee, blocked the program’s extension as he pushed for limits on the department’s authority before backing down.
Rep. Mike Rogers (R-Ala.), the panel’s ranking member, said House Republicans are likely to support a long-term reauthorization provided it makes only limited changes to the program.
Democrats want the program reauthorized, Thompson said, but not as “an excuse to water down regulatory requirements or diminish the overall security value of the program.”
https://news.bloombergenvironment.com/environment-and-energy/first-responders-need-dhs-chemical-data-house-dems
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Key Senate Republican Demands Action on Grid Threats
Feb 28, 2019 | E&E Energywire
By Peter Behr
Senate Homeland Security Chairman Ron Johnson (R-Wis.) said he will push for mandatory federal regulations to protect the nation's electrical networks against destructive shock waves from an atmospheric nuclear explosion or massive solar flare.
Johnson presided yesterday over a highly unusual Senate roundtable forum with 11 current and former federal officials and utility and research experts, repeatedly venting his frustration at what he called the glacial pace of defending against the threats.
"What drives me nuts about this is, nobody agrees on the information," he said. "What do we agree on? Where is the dispute? I want this fleshed out."
Johnson asked the panelists to consider an action agenda proposed by panelist George Baker, former senior adviser to the Congressional EMP Commission, on defenses against an electromagnetic pulse (EMP) attack.
A nuclear blast over North America would release electromagnetic waves that would cripple grid controls and other electronics across multistate regions, the commission found.
The most important of the recommendations, Baker said, was the establishment of an office of EMP coordination in the National Security Council. An executive order on EMPs from President Trump, expected soon, will take that step, he said.
Baker, a professor emeritus at James Madison University, proposed to give the Federal Energy Regulatory Commission direct authority to prescribe and enforce grid protection standards.
That authority would replace the current process that relies on the electric power industry to draft rules that FERC calls for. The commission may agree with or reject the industry-written rules or return them for revisions.
"FERC can't write or author the standards," said Joseph McClelland, director of the commission's Office of Energy Infrastructure Security, another panelist.
'Industry won't do anything'
Unlike most congressional hearings, where lawmakers come and go, often asking disjointed questions or raising home state concerns, in this case Johnson did most of the questioning, pressing for agreement on issues or at least a defined line of differences.
At times, both his arms were waving, appearing like a conductor trying to get his ensemble to play in key. But that didn't happen.
Baker was alone in urging Congress to impose military-grade defenses to shield vulnerable transformers and transmission relays from an EMP blast or solar storm. The protections for the military have been in place beginning in 1992, Baker said.
Brian Harrell, assistant director for infrastructure security at the Department of Homeland Security, agreed on the potential for enormous damage from an EMP attack but downgraded the current threat of that happening.
"The [intelligence community] currently has no specific, credible information indicating that there is an imminent threat to critical infrastructure from an EMP attack," Harrell said.
Johnson, supported by Baker, said the electric industry has largely ignored the danger.
"I've heard a number of you say, 'We take this very seriously.' Oh, good. What have we done about it?" Johnson said.
"The industry won't do anything. And I don't blame them, because they have no direction," he added.
"We have for far too long talked about developing a strategy to develop a strategy to develop a plan to do more research. We just elongate the process," Johnson said.
Rulemaking
Unlike most congressional hearings, where lawmakers come and go, often asking disjointed questions or raising home state concerns, in this case Johnson did most of the questioning, pressing for agreement on issues or at least a defined line of differences.
At times, both his arms were waving, appearing like a conductor trying to get his ensemble to play in key. But that didn't happen.
Baker was alone in urging Congress to impose military-grade defenses to shield vulnerable transformers and transmission relays from an EMP blast or solar storm. The protections for the military have been in place beginning in 1992, Baker said.
Brian Harrell, assistant director for infrastructure security at the Department of Homeland Security, agreed on the potential for enormous damage from an EMP attack but downgraded the current threat of that happening.
"The [intelligence community] currently has no specific, credible information indicating that there is an imminent threat to critical infrastructure from an EMP attack," Harrell said.
Johnson, supported by Baker, said the electric industry has largely ignored the danger.
"I've heard a number of you say, 'We take this very seriously.' Oh, good. What have we done about it?" Johnson said.
"The industry won't do anything. And I don't blame them, because they have no direction," he added.
"We have for far too long talked about developing a strategy to develop a strategy to develop a plan to do more research. We just elongate the process," Johnson said.Rulemaking
FERC, authorized by Congress to enforce mandatory security regulations for the grid, has approved a two-part security regulation to protect against damaging rogue currents from a solar flare.
The rulemaking process gives companies on the high-voltage grid until 2028 to complete physical defenses for the vital substation transformers that move power along transmission lines, McClelland noted.
Commissioners have long rejected rulemaking on the EMP threat, saying that would be an act of war and thus a challenge for defense and intelligence agencies, not FERC.
Industry representatives disputed accusations of inaction or indifference to the threat, insisting that additional detailed research is necessary to make sure current blocking devices for transformers or surge protectors for relays do not cause unintended harm to the grid's day-to-day operations.
"If you took unclassified military standards [on EMP impacts] and applied that to substations, what would that look like?" asked Randy Horton, senior program manager of the Electric Power Research Institute. "Those standards were never designed to harden utility-type assets."
Horton added, "You could actually create a potential issue" for grid operations. "The devil is in the details."
'A moment in time'
EPRI is concluding a three-year study of EMP effects looking at the different shock waves coming from a high-altitude nuclear explosion.
The slowest of the three, the so-called E3 wave, would damage no more than 14 of the largest transformers, EPRI has concluded.
That's in contrast to the 300-plus of the hard-to-replace units that would be ruined or overheated according to an earlier FERC-backed study.
In April, EPRI will issue a report on the high-intensity E1 wave from an EMP burst, which could knock out thousands of grid relays and other vulnerable electronic controls.
EPRI said it will propose the use of surge protectors to defend the most important relays, with another two years required to test the devices in actual use (Energywire, Feb. 15).
Scott Aaronson, vice president for security and preparedness for the Edison Electric Institute, took issue with Johnson's complaint, saying he challenged the idea that "the electric sector wouldn't do anything but for standards. We're proud of the progress we've made."
David Roop, director of electric transmission operations and reliability for Dominion Energy Inc.'s power delivery group, described a procession of investments the utility has made since 2004 to harden and shield vital facilities against EMP threats.
The utility spent more than three years building a new control center unlike any other in the industry, Roop said.
"This new system operation center, which opened its doors in August 2017, is hardened against natural and man-made threats" using the military-grade specifications, he said.
His company and others are working hard to add defenses, but he said, "I don't want to collapse the grid in the process." Roop added, "I'm not sure standards are the answer. We really need to know what to do."
McClelland said, "To date, a few U.S. entities have taken some steps to address EMP on their systems. Efforts such as EMP hardening of power control centers and substation control buildings have been implemented, but much work remains."
Work remains for Johnson, too, who said he would have to depend on support from other senators who have direct oversight of grid security.
"There is, I believe, a moment in time here," Johnson said.
This story also appears in E&E Daily.
https://www.eenews.net/eedaily/2019/02/28/stories/1060122647
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White House Issues NEPA Guidance for Large Projects
Feb 27, 2019 | E&E News PM
By Maxine Joselow and Courtney Columbus
The White House has offered guidance to states looking to streamline the environmental review process for large infrastructure projects.
In a memo dated yesterday, the White House Office of Management and Budget and the Council on Environmental Quality provided recommendations for state agencies reviewing projects under the National Environmental Policy Act.
The guidance clarifies elements of President Trump's Aug. 15, 2017, executive order, which aims to cut the permitting time for large infrastructure projects to two years. The order also requires one federal agency to take the lead on permitting, issuing a single environmental impact statement for the entire federal government (Greenwire, April 9, 2018).
The new memo notes that the order applies to state agencies that have been assigned NEPA responsibilities under the Surface Transportation Project Delivery Program. That means those state agencies are also on the hook for keeping the permitting timetable to two years.
"The lead state agency should seek to complete environmental reviews and authorization decisions for major infrastructure projects in not more than an average of two years," the memo says.
If a state agency runs into trouble and risks missing the permitting deadline, it should notify senior officials "for timely resolution," the memo says.
The memo was addressed to Transportation Secretary Elaine Chao, who touted her department's efforts to streamline permitting in a speech this afternoon.
The department is seeking to expedite the permitting process "so that infrastructure projects can be built more quickly while continuing to protect the environment and maintain safety standards," Chao said at the annual Washington, D.C., meeting of the American Association of State Highway and Transportation Officials.
"This is a ... multiagency initiative to cut the red tape that's holding up project delivery," she said. "This presidential mandate requires better coordination across the government for large projects — only large projects — such as allowing concurrent rather than requiring sequential permitting review.
"And it also establishes target completion dates for federal review of large projects and holds accountable the lead government department or agency when deadlines are not met," she continued, adding that the goal is to make infrastructure investments "go further without compromising outcomes."
Conservatives and energy industry groups have praised the White House's efforts to cut red tape and accelerate the permitting process. But progressives say any changes to NEPA must preserve public health and environmental safeguards.
The new memo comes as momentum builds on the Hill for the broad infrastructure package sought by Trump and leaders of both parties.
A CEQ spokesman said in an email, "As was outlined in the President's State of the Union Address, working with Congress on an infrastructure plan remains a priority."
Reporter Kevin Bogardus contributed.
https://www.eenews.net/eenewspm/2019/02/27/stories/1060122601
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EPA Eases Industrial Monitoring for Smog-Forming Pollutants (1)
Feb 28, 2019 | BNA Daily Environment Report
By Amena H. Saiyid
Costly nonstop air pollution monitoring requirements for power plants and large steel, aluminum, and paper manufacturers across the Eastern U.S. will be relaxed under an EPA rule.
Under the rule, the Environmental Protection Agency will let states write air pollution cleanup plans that give plants and facilities the option to choose lower-cost monitoring for nitrogen oxides, a precursor to ozone pollution.
The change would affect about 285 large industrial facilities and 30 power plants using turbines and boilers fired by fossil fuels, the EPA said.
The EPA estimates the move will save industries between $1.2 million to $3.3 million each year. Most power plants would be required to keep the continuous monitoring systems, but the EPA’s proposal would give other industries cheaper options.
Monitoring is a way for companies to demonstrate—and for the EPA and states to verify—that facilities are meeting required air pollution limits. Since most of these facilities are already in compliance, the EPA said it is giving states the option to relax the more stringent continuous monitoring requirements.
The rule affects those manufacturing and power plants that burn fossil fuels to run boilers or turbines. Burning fossil fuel generates nitrogen oxides that contribute to ground-level ozone, a lung irritant that can exacerbate breathing conditions like asthma. Critics are concerned that less monitoring would lead to weaker enforcement.
The rule (RIN: 2060-AU08), which acting EPA Administrator Andrew Wheeler signed Feb. 26, will update regulations the EPA issued under its 1998 emissions program known as NOx SIP Call, which allowed power plants and large manufacturing facilities buy allowances for emissions of nitrogen oxides in lieu of installing costly controls to meet federal limits.
In subsequent revisions to the 21-year-old trading program, however, the EPA limited the requirements to just power plants.
As a result, all participating coal-fired power plants and large manufacturing plants must monitor their emissions continuously.
Operating and maintaining those monitors and auditing the data they collect costs around $100,000 each year, Ron Gore, air division chief for the Alabama Department of Environmental Management, previously told Bloomberg Environment.
Gore welcomed the EPA’s final rule, while dismissing concerns by critics like the Sierra Club that questioned why the EPA didn’t justify the need to ease the burdens.
There’s a need, Gore said Feb. 27. “We definitely want to relieve our six or seven facilities from having to monitor nitrogen oxides when there is no pollution limit for them to meet.”
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
(Updated last three paragraphs with comments from Ron Gore.)
https://news.bloombergenvironment.com/environment-and-energy/epa-eases-industrial-monitoring-for-smog-forming-pollutants-1
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EPA Schedules Hearing on Mats Rollback Proposal
Feb 27, 2019 | Inside EPA
EPA has scheduled a public hearing for March 18 at agency headquarters on its proposal to scrap the “appropriate and necessary” cost-benefit finding that underpins the Obama-era mercury and air toxics standards (MATS) rule, a move that critics say will make the overall rule vulnerable to a legal challenge for lacking a cost justification.
The agency is poised to announce the hearing in a notice slated for publication in the Feb. 28 Federal Register, and to also extend the deadline for written comments on the proposal from April 8 to April 17.
The proposal, released in late December, would scrap the Obama EPA’s finding that it is appropriate and necessary under the Clean Air Act to regulate air toxics from power plants. The finding is a legal prerequisite for the MATS rule itself, raising fears among the rule’s supporters that EPA’s proposal, if finalized, provides an avenue for litigants to attempt scrapping MATS emission limits.
The Trump EPA faults the finding’s consideration of costs as inadequate, arguing that implementation costs for MATS far outweigh the rule’s air toxics benefits. The Obama EPA initially kept cost analysis out of the finding entirely, then modified the finding to include costs at the direction of the Supreme Court.
One rationale the Obama administration presented for retaining the finding was that the cost-benefit analysis developed for MATS itself shows the rule is cost-effective. However, that analysis depends on “co-benefits” of reducing particulate matter (PM), which is not an air toxic targeted by MATS.
In its new proposal, EPA argues that excluding the PM benefits, MATS is not cost-effective and hence the Obama EPA’s modified “appropriate and necessary” finding is flawed.
Democrats, environmentalists and a large swath of the utility sector want to retain MATS, which is fully implemented and has seen utilities invest millions of dollars in compliance. EPA insists in the proposal that removing the appropriate and necessary finding does not mean also scrapping MATS, because the Clean Air Act sets a high bar for EPA to “de-list” a source category of air toxics emissions subject to regulation.
But supporters of the rule are unconvinced, warning that EPA’s proposal undermines MATS and invites litigation to vacate it on the basis that it will remove the air law-mandated justification for the rule.
https://insideepa.com/daily-feed/epa-schedules-hearing-mats-rollback-proposal
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Pelosi 'Can't Say' Congress Will Pass 'Green New Deal'
Feb 27, 2019 | E&E News PM
By George Cahlink
House Speaker Nancy Pelosi today downplayed possible House action on the "Green New Deal," praising the enthusiasm behind it but saying committees would take the lead in writing any climate legislation.
"I salute the enthusiasm, but I can't say we are going to take that and pass that because we have to go through the checks and balances of it with our committee chairs," the California Democrat said during a question-and-answer session with students at Howard University.
While progressives behind the proposal would prefer Pelosi support their sweeping plan, her remarks are similar to comments she made earlier this month — in which she praised the aspirations of the "Green New Deal" without explicitly backing it — and are not likely to rankle the left.
Calling it a "Congresswide initiative," Pelosi stressed she has asked every House committee chair what steps they are taking to fight climate change. She said she wants "bold, evidence-based" proposals that address the climate's impacts on the economy, public health and national security.
"The other side will say it's a job loser. It isn't. It's about jobs, jobs, jobs," said Pelosi, adding she wants the United States to lead the world in green technology.
Ways and Means Chairman Richard Neal (D-Mass.), who has faced pressure from the Sunrise Movement and other groups to back the plan, released a statement today that echoed Pelosi's more deliberative approach.
"It's our responsibility to make sensible changes now that prevent a catastrophic future," said Neal, citing the need to cut emissions, expand renewables and modernize infrastructure.
Neal said he would hold hearings on climate proposals, which would include the "Green New Deal."
https://www.eenews.net/eenewspm/2019/02/27/stories/1060122589
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Republicans Love to Talk About the 'Green New Deal'
Feb 28, 2019 | E&E Daily
By Nick Sobczyk
House Natural Resources Committee Republicans don't think the "Green New Deal" falls in their jurisdiction, but they sure do talk a lot about it.
Rep. Paul Gosar (R-Ariz.) called it "an alarmist pipe dream that seeks to fundamentally transform America without a blueprint."
"If this goes through, this will be outlawed. I could no longer eat this type of thing," said Natural Resources Committee ranking member Rob Bishop (R-Utah) as he chowed down on a hamburger.
Speaking in the shadow of the Capitol he added that the "Green New Deal" was "designed by a bunch of Eastern urbanites."
Those were only a few of the comments yesterday at a Congressional Western Caucus forum and press conference about the progressive climate plan introduced as a nonbinding resolution by Sen. Ed Markey (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.).
The afternoon event was one in a string of GOP attempts to discredit the resolution by talking up its more ambitious or unrealistic provisions.
Senate Majority Leader Mitch McConnell (R-Ky.) has thrown his weight into the effort by planning a vote on the resolution to put centrist Democrats on the spot. He spoke extensively about it in a floor speech yesterday morning (Greenwire, Feb. 27).
One thing's for sure: The Western Caucus can't draw a crowd like Ocasio-Cortez.
The event yesterday was sparsely attended by a handful of energy advocates, aides and reporters, unlike Ocasio-Cortez's "Green New Deal" events, which have drawn dozens of activists.
The Western Caucus event was held around the same time as final passage of a House bill requiring background checks on gun purchases, which saw gun control activists cheering on the Capitol steps behind it. The wind rattled the Western Caucus podium, knocking off a sign that read "Green Pipe Dream."
Still, Republican focus on the "Green New Deal" and the highlighting of some of its more far-reaching goals have some climate advocates and political science researchers wondering whether progressives have overstepped their bounds and handed Republicans a new way to oppose climate legislation.
Anthony Leiserowitz, director of the Yale Program on Climate Change Communication, said it's probably too early to tell, but there are a few schools of thought on that front.
The Republican bludgeoning will in all likelihood drive down the poll numbers with GOP voters. Polling from Leiserowitz's organization has early approval ratings for the "Green New Deal" higher than 80 percent, though the vast majority of respondents knew little about it.
"Here's where there's a bigger debate, and I don't know the answer to this," Leiserowitz said. "Ultimately, does proposing the 'Green New Deal' provide a big club for conservative Republicans to beat Democrats over the head with? Or does it actually force this issue onto the national agenda, which clearly it has?"
'You haven't been taught about photosynthesis'
Messaging aside, Natural Resources Republicans, most of whom are Western Caucus members, don't want to discuss climate change on the dais, nor are they especially interested in presenting their own vision for reducing the greenhouse gas emissions that cause climate change.
Asked multiple times at the press conference about what Republicans would do on climate change, Gosar, who sits on the committee, demurred.
"Unfortunately, you haven't been taught about photosynthesis," Gosar said to a young man, who did not appear to be a reporter but asked what Republicans are doing on climate change. "Photosynthesis is where plants take carbon dioxide to produce oxygen."
Instead of suggesting an idea to reduce emissions, Gosar touted the Trump administration's "all of the above" energy agenda and noted that emissions have dropped on their own in recent years.
Power plant carbon dioxide emissions rose in 2018 for the first time in five years, though CO2 emissions are down since 2005.
Rep. Louie Gohmert (R-Texas), a member of the committee and the caucus, went so far as to adjourn a Natural Resources subcommittee hearing on climate denial earlier this week because he didn't think it was in the panel's jurisdiction (E&E News PM, Feb. 26).
It was a sign of the sharp partisanship that sometimes defines Natural Resources. Chairman Raúl Grijalva (D-Ariz.) yesterday called it "a juvenile act."
'Climate has always changed'
The forum and press conference included Western Caucus members both on and off the committee, but it was led by Gosar, who decried what he called "hyperbolic" claims about the warming planet.
Most of the warnings laid out in the "Green New Deal” are echoed by the world's top climate researchers and federal scientists.
Although many scientists are hesitant to endorse any specific climate policy, some have said the "Green New Deal" is one of the few that properly acknowledge the scope of the challenge.
"As a scientist, I can say that that is the only policy currently on the table that contains the magnitude of actions that are required to avoid, ultimately, serious consequences," Katharine Hayhoe, a prominent atmospheric scientist at Texas Tech University, said at an Environmental and Energy Study Institute forum earlier this week.
Hayhoe said a price on carbon could also produce similar emissions reductions if structured correctly, though she said she would prefer to be "solution agnostic."
The press conference yesterday was a world away from that policy discussion, held outside the Capitol on a brisk, even unusually cold, day.
The caucus invited, however, known quantities in the climate skeptic world, including David Legates, a climatology professor at the University of Delaware, and Myron Ebell, director of the Competitive Enterprise Institute's Center for Energy and Environment.
"As the son of a geologist, our climate has always changed, and if you doubt me, go dig up some fossils," Gosar said. "It'll tell you an awful lot about how our climate has changed."
The vast majority of climate scientists believe industrial greenhouse gas emissions are driving temperatures to unprecedented levels that, left unchecked, could have disastrous effects for human society as it's currently built.
But Gosar's perspective, which evokes the staunch skepticism of Sen. Jim Inhofe (R-Okla.), is in some ways a dying breed.
It certainly stands in stark contrast to recent comments by Republicans on the Energy and Commerce Committee, who have nominally started to accept the science but question any progressive proposal to act on it.
Even those members have lashed out at the "Green New Deal," but Democrats have generally said they're not concerned about giving Republicans an easy talking point. On the Senate side, they took the opportunity last night to launch into a series of floor speeches about climate policy.
"We're going to get into the 'Walking Dead' situation before all this is over," Grijalva said, likening GOP predictions about the "Green New Deal" to the apocalyptic zombie landscape of the television show. "That's going to be their whole thing, but I'm not going to let that deter what we need to do.
"You've got to read through the veil," he added. "It's a stalling tactic. It's avoidance."
https://www.eenews.net/eedaily/2019/02/28/stories/1060122637
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A Growing Divide on Climate Science: Trump vs. the Rest of the World
Feb 28, 2019 | New York Times
By Coral Davenport
New efforts by President Trump and his staff to question or undermine the established science of climate change have created a widening rift between the White House on one side, and scientific facts, government agencies, and some leading figures in the president’s own party on the other.
The president’s senior advisers are exploring the idea of creating a panel aimed at questioning the National Climate Assessment. According to a White House memo, the group would include William Happer, a Princeton physicist who has asserted that carbon dioxide — a greenhouse gas that scientists say is trapping heat and warming the planet — is beneficial to humanity.
The climate assessment, a sweeping report issued by the White House itself in November, concluded decisively that the burning of fossil fuels was warming the atmosphere, leading to a raft of harmful effects across the United States and the world.
And Mr. Trump announced last week on Twitter that he would nominate Kelly Knight Craft to be his ambassador to the United Nations. Ms. Craft said in a 2017 television interview that, on the issue of climate change, she believes there are “scientists on both sides that are accurate.”
“There is no precedent for something like this,” said Douglas Brinkley, a historian who has written books on five former United States presidents. “Other presidents have attacked policy initiatives, but not science.”
At the same time, more senior Republicans, including those in Congress, are moving in the opposite direction, acknowledging the established science and publicly calling to reduce fossil fuel pollution.
This month, for instance, three of the top-ranking Republicans on the House Energy and Commerce Committee, Greg Walden of Oregon, Fred Upton of Michigan, and John Shimkus of Illinois, published an op-ed on the website Real Clear Policy in which they said, “climate change is real” and called for innovations to “reduce greenhouse gas emissions.”
Similarly, in December, Senator John Barrasso, the Wyoming Republican who is chairman of the Senate Environment Committee, wrote an op-ed in The New York Times in which he acknowledged his acceptance of climate science but also criticized the Paris Agreement and proposals to tax carbon dioxide emissions.
Republican pollsters and staff members said the White House’s efforts to attack the science — that fossil fuel pollution traps heat, warms the planet, and contributes to more severe droughts, heat waves and hurricanes — could backfire and put Mr. Trump fundamentally at odds with his own party.
“A lot of thoughtful Republicans have accepted the reality of climate change and are wrestling with questions of policy,” Whit Ayres, a prominent Republican pollster, said.
Mr. Ayres noted that many Republicans had concerns about climate change policies like taxing or regulating coal and oil pollution. But he said that questioning the foundational science of climate change could become a political liability.
“There are perfectly legitimate questions to be raised about whether a dollar spent fighting climate change is better spent on health care or education,” Mr. Ayres said. “But there are no longer credible questions to be raised about the existence of climate change. If the White House ends up there, that is simply not credible.”
White House officials initially sought to play down the National Climate Assessment by publishing it late in the afternoon the Friday after Thanksgiving. But its dramatic findings — that the impacts of climate change could knock as much as 10 percent off the size of the American economy by century’s end — received a lot of attention around the country.
Analysts also noted that the findings of the assessment could provide legal ammunition to opponents of Mr. Trump’s efforts to roll back climate change regulations, since the report makes the case that increasing greenhouse emissions is harmful to humanity.
It was those factors that prompted the White House effort to establish a panel or committee that would question or contradict those comprehensive scientific findings, according an administration official, who was not authorized to discuss the matter publicly and who spoke on condition of anonymity, and a former senior White House official with knowledge of the matter.
But the creation of such a panel, should it come about, would put Mr. Trump in a highly unusual position.
In particular, experts said, presidents have never sought to undermine the findings of the National Academies of Science, created by President Abraham Lincoln to provide unbiased scientific findings to the country’s leaders. The group played a key role in reviewing the conclusions of the National Climate Assessment.
“If there is one body that has the thorough respect of scientists and policymakers, it is the National Academies,” said Michael Oppenheimer, a professor of geosciences and international relations at Princeton University. “I can’t recall any time that an administration has tried to debunk a review by the National Academy, or where the White House ever tried to ‘re-review’ something the academy has reviewed.”
Critics of the president also singled out his announcement that he would nominate Ms. Craft as ambassador to the United Nations, given that her comments on climate change are far outside the mainstream of established science.
“She’s taken this bizarre position,” said R. Nicholas Burns, who served as under secretary of state for political affairs during the George W. Bush administration. “She will find that in New York, at the Security Council, climate change is one of the top issues. If the representative of the world’s largest economy and one of the largest emitters doesn’t understand the science of this issue, it makes the U.S. look feckless and irresponsible.”
Ms. Craft, currently the United States ambassador to Canada, and her husband, Joseph W. Craft III, a billionaire coal magnate from Kentucky, were major contributors to Mr. Trump’s 2016 presidential campaign and donated to his inaugural committee.
A White House spokeswoman declined to speak on the record for this article.
The moves by the White House come as public opinion in the United States and around the world appears to be falling more in line with the science.
Globally, climate change is seen as the top international threat,according to a poll conducted in 26 countries and published this month by the Pew Research Center.
The Trump administration has been criticized by other countries for Mr. Trump’s plans to withdraw the United States from the Paris climate agreement and for his policy moves to weaken Environmental Protection Agency rules.
But the new plans to create the panel and the expected nomination of Ms. Craft will sharply deepen that divide, said Sherri Goodman, who served as a deputy under secretary of defense in the Clinton administration.
“It creates a huge divide with our European and Asian allies, and it allows China to claim the mantle of climate leadership,” she said. “China shows up at climate conferences when the U.S. doesn’t, and they offer to engage on the science.”
In the United States, polling consistently shows that more than half of Americans now accept that climate change is caused by human activities. While most surveys show that among Republicans, less than half accept that science, the data also reveals a sharp generational divide among Republicans.
A 2018 poll by the Pew Research Center found that just 18 percentRepublicans born in the postwar baby boom accepted the reality of human-caused climate change, but twice that number of millennial Republicans, defined as those born from 1981 through 1996, accepted that science.
In addition, the poll found that 45 percent of millennial Republicans said they were seeing at least some effects of global climate change in the communities where they live, compared with a third of baby boomer Republicans.
That fact is not lost on political analysts.
“Republicans who believe pollsters, pollsters are telling them, ‘people care about climate,’ ” said Steven J. Milloy, a member of Mr. Trump’s E.P.A. transition team who now runs a website aimed at casting doubt on the established science of human-caused climate change.
Mr. Milloy and other Republican strategists also said that within the White House, millennial Republican staffers were pushing back at the effort to create the new panel.
“If you’re 30 years old and work at the White House, it’s not clear that this effort is a good idea,” said Mr. Milloy.
But he added that for Mr. Trump’s base of supporters, none of that matters. “People like me, we love the guy.”
https://www.nytimes.com/2019/02/28/climate/trump-climate-science.html
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Carbon Capture Gains Support of Senate Climate Change Denier
Feb 27, 2019 | BNA Daily Environment Report
By Abby Smith
Sen. James Inhofe (R-Okla.) can support at least one bill that would reduce carbon emissions—because it supports continued use of fossil fuels.
Inhofe on Feb. 27 declared support for bipartisan legislation to boost research and development of carbon capture technologies.
The bill seems to be gaining traction as a Republican alternative to progressive Democrats’ proposed Green New Deal, which calls for a rapid transition to 100 percent renewable energy.
The bill Ihhofe backed, S. 383, known as the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, was reintroduced Feb. 7 and already has the support of a group of a dozen bipartisan senators—including the top Republican and Democrat on the Senate environment committee.
The House also recently introduced bipartisan companion legislation.
Republicans in both chambers recently have pointed to carbon capture as a critical piece of a set of climate solutions they say they can work on with Democrats.
Many of those Republicans have also started to say they accept mainstream climate change science. Inhofe hasn’t been one of them, but his willingness to back carbon capture legislation shows the possibility that some technology-driven solutions could garner broader support.
‘Machine Called America’
“It’s refreshing to me that we can talk about climate without the normal hysterical Hollywood references being made about the world coming to an end,” Inhofe said during a Feb. 27 Senate environment committee hearing on the bill. “We’ve got to run this machine called America, and we can’t do it without fossil fuels.”
Carbon capture separates the greenhouse gas carbon dioxide from emissions of power plants and other facilities so it can be permanently stored or used, rather than released into the atmosphere, where it accumulates and drives global warming. The bill also would support direct air capture research, which involves removing carbon dioxide from the atmosphere.
The USE IT Act would be the second bipartisan boost for carbon capture in recent years. Last year,
Congress passed legislation extending and expanding the so-called 45Q tax credit for carbon capture projects as part of a budget bill.‘Road Map’
Sen. Sheldon Whitehouse (D-R.I.), who pushes for action to mitigate climate change, is an original sponsor of both carbon capture bills.
The USE IT Act includes several elements to support carbon capture projects, including efforts to build of carbon dioxide pipeline infrastructure and boost research and development of direct air capture.
The legislation has a wide range of supporters, including coal companies, utilities, labor unions, and environmental groups.
The USE IT Act “gives us the road map to get there. 45Q gives us the financial incentives,” Paul Sukut, general manager and CEO of Basin Electric Power Cooperative, a North Dakota-based utility, said during the hearing.
“We recognize the fact that we are in a carbon-constrained world,” Sukut added. “How do we get there? We need some time and flexibility.”
High Cost
The bill also gained another Democratic co-sponsor Feb. 27, Sen. Chris Van Hollen (D-Md.).
He expressed reservations about the high cost of carbon capture and the use of subsidies to support the technology, but he said he backed the legislation as a tool to address climate change in the absence of a broader legislative solution.
Republicans, though, were critical of the broader Green New Deal championed by Rep. Alexandria Ocasio-Cortez (D-N.Y.).
“This committee has—and should continue to lead—on bipartisan, commonsense solutions,” Sen. John Barrasso (R-Wyo.), chair of the Senate environment committee, said in opening remarks.
It is critical for Congress to recognize the problem of climate change and the need to reduce carbon emissions, Steve Oldham, the CEO of Carbon Engineering, which works on direct air capture technology, said during the hearing.
“For me, it’s about developing the tools,” which in turn allows companies and governments the flexibility to make choices about how to best reduce carbon emissions, Oldham added.
https://news.bloombergenvironment.com/environment-and-energy/carbon-capture-gains-support-of-senate-climate-change-denier
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Alaska Climate Actions Uncertain After Governor Dissolves Panel
Feb 28, 2019 | BNA Daily Environment Report
By Jill Burke
Alaska’s Legislature may decide to take action on recommendations to ease the impacts of climate change, but the state doesn’t need the panel that made them, a spokesman for the state’s governor told Bloomberg Environment.
Gov. Michael Dunleavy (R) disbanded on Feb. 22 the Climate Action for Alaska Leadership Team, which was created by his predecessor, Bill Walker, an independent. The 21-member volunteer team in September published 38 pages of climate change action recommendations.
The suggestions included a push for clean energy policies and investment, carbon taxes, renewable energy tax credits, and reduction of oil, gas, and mining industry greenhouse gas emissions.
The Arctic is warming faster than other parts of the Northern Hemisphere.
Alaska’s sea ice is dwindling, amplifying storm damage, speeding coastal erosion, and making subsistence hunts more dangerous. Ocean warming and acidification have the potential to affect fish, algae, and migrating sea birds. Warming permafrost poses a threat to existing infrastructure.
“The impacts of climate change will continue to be part of the public discussion, and Alaska will strive to take action to mitigate those impacts for its people,” Matt Shuckerow, a spokesman for Dunleavy, said in an email. “More broadly, if the Legislature would like to see specific action on these items, including adding unreasonable and out of touch restrictions on Alaska businesses and communities, that is their prerogative.”
Dunleavy, who won the governor’s race in 2018, supports resource extraction as an economic driver and is opposed to what he sees as excessive regulation.
Stop and Start
Chris Rose, executive director of Renewable Energy Alaska Project (REAP) and a member of Walker’s climate action leadership team, said in a Feb. 26 interview that the next steps would have included the creation of a Cabinet-level position to oversee implementation of a climate strategy, including promotion of climate legislation.
Without the team in place, Rose said that’s unlikely to happen.
“I guess people have to start looking out more than the next two or three years and realizing over the next 50-100 years Alaska’s position in the world is going to be significantly shaped by how climate impacts the terrestrial and marine ecosystems that we all depend on,” Rose said. “Short-term thinking is not consistent with the long-term impacts of what’s going to be happening.”Rose also served on a climate action team under former Gov. Sarah Palin (R).
“I have gone through this twice now where a lot of work has been put into developing recommendations, and that work is put away,” he said.
Rose said said communities with the fewest resources would have benefited from the collaborative approach recommended in the report.
“Those are the communities that may likely feel a lot of impacts first, and they may be the least able to, on their own, get ready for them, or actually do something when the impacts show up at the front door.”
https://news.bloombergenvironment.com/environment-and-energy/alaska-climate-actions-uncertain-after-governor-dissolves-panel
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Democratic Presidential Hopefuls Get High Environmental Scores
Feb 28, 2019 | BNA Daily Environment Report
By Tiffany Stecker
Thirty-six senators, including all of the Senate’s 2020 presidential nominees, notched perfect scores on the League of Conservation Voters’ barometer of environmental commitment for 2018.
That figure is a slight uptick from the 27 senators who received perfect scores in 2017, and will likely serve as a badge of honor for candidates on the campaign trail, including Democratic Sens. Cory Booker (N.J.), Kirsten Gillibrand (N.Y.), Kamala Harris (Calif.), Amy Klobuchar (Minn.), Elizabeth Warren (Mass.), as well as Independent Sen. Bernie Sanders (Vt.).
Rep. John Delaney (D-Md.), who also is running in the 2020 Democratic primary, received a 91 percent score.
The league’s 2018 scorecard, which grades lawmakers from 0 to 100 percent on their votes in favor or against the environment, underpins the group’s endorsements in election years.
It also heavily favors Democrats, with this year’s vote count including decisions on judicial nominees and Supreme Court Justice Brett Kavanaugh. Sen. Sherrod Brown (D-Ohio), another possible presidential candidate, also scored 100.
Republicans in both chambers generally scored low, with seven Senators and 77 House members scoring zero percent, according to the Washington-based advocacy group.
An outlier was Rep. Brian Fitzpatrick (R-Pa.), who earned a 83 percent score, higher than many Democrats.
Fitzpatrick has pushed for greater federal scrutiny on water pollution from perfluorinated chemicals and has signed onto bipartisan legislation to place a per-ton fee on carbon dioxide emissions.
Fitzpatrick Scores High
“One of the most damaging legacies of Trump’s presidency and Sen. [Mitch] McConnell’s time as Senate Majority Leader is reshaping the federal judiciary with lifetime appointments for extreme and partisan judges for lifetime appointments,” Sara Chieffo, League of Conservation Voters vice president of government affairs, said in a news release.
On the House side, the number of members with perfect scores dropped from 84 Democrats to 29, likely a result of missed votes due to campaigning in an election year.
The League of Conservation Voters has a board member from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
https://news.bloombergenvironment.com/environment-and-energy/democratic-presidential-hopefuls-get-high-environmental-scores
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Show Us Your Climate Risks, Investors Tell Companies
Feb 28, 2019 | Wall Street Journal
By Gabriel T. Rubin
Companies are under more pressure than ever to disclose their exposure to climate-change risks.
In the coming annual-meeting season, companies are projected to face a record of 75 or more climate-related shareholder proposals, up from 17 in 2013, according to ISS Analytics, the data-intelligence arm of Institutional Shareholder Services. Investing powerhouses such as BlackRock Inc. and Vanguard Group are separately backing voluntary climate-change reporting standards for public companies and hope to prompt an uptick in disclosures this spring.
Annual meetings, which typically take place in the spring, are an opportunity for activist shareholders to put pressure on companies because of a process that allows them to submit proposals for a shareholder vote.
DowDuPont Inc., instance, received a proposal for its 2019 proxy ballot that asked for more disclosures about risks from expanding chemical-plant operations near the Gulf of Mexico. Major storms there, such as Hurricane Harvey, can cause damage and spills. A spokesman for DowDuPont declined to comment.
Starbucks Corp. , meanwhile, is facing pressure from both shareholders and its own environmentally conscious consumer base. Last year, 29% of Starbucks shareholders voted for the company to make public detailed plans about how it was going to promote reusable packaging and cut its use of plastic.
The proposal warned that Starbucks’s reputation as an environmental leader could be hurt by its failure to meet its own sustainability goals. The proposal is on the company’s 2019 proxy ballots released in early February. Starbucks’s board of directors recommended against the proposal.
Beyond individual company initiatives, BlackRock, Vanguard, State Street Global Advisors and others are among institutional investors backing the Sustainability Accounting Standards Board, a nonprofit organization that wants to standardize and increase corporate environmental disclosures. The group in November formally released a set of voluntary standards companies can follow.
“What we’re trying to do is maximize the value of the companies in the portfolio, protect the downside, and move the needle in a direction that we think reflects important material issues company by company,” Barbara Novick, a BlackRock senior executive, said in a Feb. 7 Washington speech.
The Financial Stability Board, an international consortium of regulators, is separately tracking voluntary climate reporting and will issue a report this June.
JetBlue Airways was an early adopter of SASB’s approach, launching its voluntary disclosures in 2016. In its 2017 sustainability report, the company said a rise in interest in climate issues followed years of especially volatile hurricane seasons in the Atlantic Ocean.
“For an airline like JetBlue with a significant focus in the Caribbean, the prospect of more extreme storms raises a legitimate concern: How prepared is JetBlue to deal with changing weather patterns that may be caused by climate change?” JetBlue’s report said.
Some companies are taking an additional step by making climate-related pledges. GlencorePLC, one of the world’s biggest coal producers, said in February that it would cap its output of the fossil fuel. Royal Dutch Shell PLC, Europe’s largest oil-and-gas company, bowed to shareholder demands in December to set emission-reduction targets from the use of its products.
Such disclosures and actions are mostly voluntary or at the request of shareholders, rather than a result of any regulatory mandate.
Some investors, Democratic politicians and environmental groups are pushing for mandatory disclosures. But the Securities and Exchange Commission so far hasn’t required specific climate-related disclosures, instead telling companies to hew to broader criteria for what public companies must disclose as a material risk.
There are also calls for federal backing for SASB-style disclosures to boost their comparability and spur more detailed reporting from companies.
“You’re not going to get proper disclosure without some sort of mandate,” said Jill Fisch, a University of Pennsylvania Law School professor who co-authored a petition for rule-making at the SEC on behalf of several public retirement funds, including those from California, New York and Illinois.
However, mandating disclosures that rely on speculative long-term predictions about climate change could expose companies to fraud liability, said J.W. Verret, a professor at George Mason University’s Antonin Scalia Law School and a member of the SEC’s Investor Advisory Committee.
“Materiality is the keystone in the architecture of federal securities laws,” he said. “You tinker with that keystone at your peril.”
The SEC, under Chairman Jay Clayton, has held to its definition of what requires disclosure: If something will have a material impact on a company’s performance, it should be disclosed.
Mr. Clayton reiterated that position in a Feb. 5 meeting with Sen. Brian Schatz (D., Hawaii), people familiar with the matter said. Mr. Schatz has pressed the SEC to mandate climate disclosures, including in December at a Senate Banking Committee hearing where Mr. Clayton testified.
An SEC spokeswoman declined to comment beyond prior public remarks made by Mr. Clayton.
“Publicly traded companies are not immune to the risks from climate change,” Mr. Schatz said in an email. “The next step is to put in place a meaningful climate risk disclosure framework.”
Mr. Clayton doesn’t see the need for the SEC to immediately step in. “There’s no need to change the framework,” he told the Investor Advisory Committee in a December speech. “But what goes into the framework is something that we need to continue to assess.”
https://www.wsj.com/articles/show-us-your-climate-risks-investors-tell-companies-11551349800?mod=searchresults&page=1&pos=1
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