Preview Newsletter
ACC AM Mar 19
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(ACC Mentioned) It's Sad That The Best The Media Can Do To Fight Government Corruption Is Scalp Aaron Schock
Mar 18, 2015 | The Huffington Post
By Jason Linkins
This week, noted ab-haver Rep. Aaron Schock (R-Ill.) announced that he will be resigning his seat March 31 under the weight of multiple examples of shady, scandalous behavior. "The constant questions over the last six weeks," said Schock in a statement, "have proven a great distraction that has made it too difficult for me to serve the people... -
(ACC Mentioned) House Clears Bill Adding Transparency Requirements to Most EPA Actions
Mar 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
The House cleared legislation March 18 requiring the Environmental Protection Agency's actions to be based on data that is public and available for independent analysis. The two-page Secret Science Reform Act (H.R. 1030), offered by House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas), passed the chamber on a 241... -
(ACC Mentioned) Udall, Boxer Weigh in on TSCA Reform Ahead of Key Hearing
Mar 18, 2015 | E&E Daily News
By Sam Pearson
Lamwakers traded barbs yesterday ahead of a crucial Senate hearing today on a plan to update the Toxic Substances Control Act of 1976, in what is considered the most significant chance to amend the law in decades. Though a proposal by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) -- S. 697, or the "Frank R. Lautenberg Chemical... -
(ACC Mentioned) TSCA Tees Up
Mar 18, 2015 | PoliticoPro - Morning Energy
By Darius Dixon
Former Green Hero Lays Out Legal Attack On EPA Rule: Opponents of the President Barack Obama’s climate change plan brought out the heavy artillery yesterday, turning to a former hero of the green movement to lay out a legal plan to bring down EPA’s upcoming rules to cut carbon dioxide emissions from power plants. -
(ACC Mentioned) Democrats Boxer, Udall Fight Over Lautenberg's Legacy
Mar 18, 2015 | National Journal
By Jason Plautz
Democratic Sens. Barbara Boxer, Edward Markey, and Tom Udall are normally eye-to-eye on most issues, especially when it comes to the environment. Now, they're at loggerheads over the legacy of the late liberal Sen. Frank Lautenberg and a bill that would in theory enhance the power of the EPA. -
(ACC Mentioned) Chemical Regulation Overhaul Bill Faces Opposition in Senate
Mar 19, 2015 | AP (in Standard Examiner)
By Matthew Daly
A bipartisan bill that would update regulation of harmful chemicals for the first time in nearly 40 years is drawing opposition from some Democrats and environmental groups, who charged on Wednesday that the measure is a step backward in protecting health and the environment. -
(ACC Mentioned) Senate Seems Poised To Advance 'Compromise' Chemical Regulation Bill
Mar 18, 2015 | The Huffington Post
By Kate Sheppard
Senators traded some jabs at a hearing on chemical safety legislation Wednesday, but it seems likely that the bill will advance out of the Environment and Public Works Committee. The hearing focused on legislation that Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced last week to reform the 39-year-old Toxic Substances Control Act... -
(ACC Mentioned) Maddow: Lawmaker Forgets To Take
Mar 18, 2015 | Real Clear Politics
Rachel Maddow reports on the discovery that a draft of a new law to make much-needed updates to regulations on the chemical industry was authored by the American Chemistry Council, the leading trade organization and lobbyist for the chemical industry. MADDOW: The chief Democratic negotiator on this bill is Tom Udall ... -
(ACC Mentioned) Chemical Industry Contributions Flow to Candidates as Congress Takes Up Regulatory Legislation: Report
Mar 18, 2015 | The Times-Picayune
By Bruce Alpert
A new report says that the chemical industry is spending heavily on campaign contributions and lobbying with an overhaul of chemical regulations on the congressional agenda. The report by MapLight, a non-partisan group that evaluates campaign contributions and lobbying, said that the 17 sponsors of the Frank R. Lautenberg Chemical... -
(ACC Mentioned) A Chemical Safety Law with Industry's Red Pen (Literally) All Over It
Mar 18, 2015 | Common Dreams
By Deirdre Fulton
The leading trade organization and lobbyist for the chemical industry left its computerized fingerprints all over a chemical safety reform bill being debated this week in Congress, according to "rudimentary digital forensics" performed by Hearst News Service. The findings, revealed the day before Wednesday's Senate Environmental... -
(ACC Mentioned) Senate Panel Renews Debate on Toxins Law
Mar 19, 2015 | Rutland Herald
By Neal P. Goswami
Industry representatives are pushing back against language inserted into a Senate health care bill late last week that would alter a 1-year-old law that looks to regulate toxins in commercial products. The Senate Health and Welfare Committee heard testimony from several people Wednesday looking to scrap the... -
(ACC Mentioned) Chemical Industry Increases Contributions and Lobbying as Congress Takes up Chemical Bill
Mar 18, 2015 | MapLight
By Daniel Stevens
Today, Wednesday March 18, the Senate Environment and Public Works Committee is scheduled to hold a hearing on the ‘The Frank R. Lautenberg Chemical Safety for the 21st Century Act,’ which, if passed, would overhaul how the federal government regulates chemicals. The bill is a product of negotiations between Sen. David Vitter (R-LA)... -
State Role Overseeing Chemical Safety Central Issue in TSCA Reform Hearing
Mar 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A bipartisan bill to overhaul the Toxic Substances Control Act would be better if it let states enforce federal chemical standards, witnesses told the Senate Environment and Public Works Committee March 18. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) also would be more health-protective if it let states regulate... -
EPA Eyes Senate TSCA Reform Bill Fixes But Questions State Preemption
Mar 18, 2015 | InsideEPA
By Bridget DiCosmo & Maria Hegstad
EPA toxics chief Jim Jones is detailing potential fixes to a bipartisan Senate Toxic Substances Control Act (TSCA) reform bill in order for the measure to win the agency's support such as clarifying its power to regulate “articles,” but Jones questioned language that opponents of the bill warn will broadly preempt state toxics programs. -
Democrats’ Dispute Turns Toxic Over Chemical Safety
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The intra-party dispute over a toxic chemicals bill intensified on Tuesday, with Senate Democrats trading barbs over whether the effort to update the 40-year-old law would undercut states’ ability to police dangerous substances. Amid pleas from the late Sen. Frank Lautenberg’s widow to pass the bipartisan compromise that would revise... -
House Passes Bill to Ban EPA 'Secret Science'
Mar 18, 2015 | The Hill - Floor Action
By Timothy Cama and Cristina Marcos
The House passed a bill Wednesday that aims to increase public scrutiny of the scientific research behind Environmental Protection Agency (EPA) regulations. Passed 241-175, the GOP bill would prohibit the EPA from using so-called “secret science” to justify its rules. -
Food Producers Win in Prop 65 Case; No Warning Needed for Lead in Baby Food
Mar 19, 2015 | BNA Daily Environment Report
By Martina Barash
A California public interest group has lost its bid to reverse a trial-court ruling in favor of 32 food manufacturers, distributors and retailers over the presence of lead in food for babies and toddlers (Envtl. Law Found. v. Beech-Nut Nutrition Corp., 2015 BL 72035, Cal. Ct. App., No. A139821, 3/17/15). -
Some Biodegradable Plastics Don’t Live Up To Their Claims
Mar 18, 2015 | Chemical & Engineering News
By Deirdre Lockwood
From bread bags to beverage bottles, many plastics now contain additives designed to make the materials biodegradable. But a new study shows that plastics made with such additives do not biodegrade in the environment significantly faster than those without the compounds (Environ. Sci. Technol. 2015, DOI: 10.1021/es504258u). -
(ACC Mentioned) Legality of EPA Ozone Proposal Questioned By Industry, Environmental Organizations
Mar 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Industry and environmental organizations both used the public comment period on the Environmental Protection Agency proposal to revise national ozone standards to question the legality of the agency's identified range for the primary, health-based standard. -
North Carolina Governor Signs Bill Canceling Mandate for Rule on Drilling Toxic Emissions
Mar 19, 2015 | BNA Daily Environment Report
By Jeff Day
North Carolina Gov. Pat McCrory (R) signed legislation that eliminates a state code provision requiring regulators to establish toxic air emissions limits for oil and natural gas drilling operations. The bill (H.B. 157; Session Law 2015-1) stipulates the state Environmental Management Commission need not regulate toxic air emissions from oil... -
Oil Producers Face Skeptical Congress In Drive to End Crude Export Ban
Mar 19, 2015 | BNA Daily Environment Report
By Jim Snyder and Brian Wingfield
Coming into this year, it seemed that the time was right to overturn a ban on exporting U.S. crude oil: Republicans controlled Congress, production was nearing an all-time high and gasoline was falling toward $2 a gallon. Despite a lobbying push by drillers, and steep job losses in the oil fields, there's been no significant effort in Congress to lift... -
Refiners Hit Back at Need For Oil Exports
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
The main lobbying group for oil refiners released a study Wednesday hitting back at a top argument in favor of oil exports. The survey, completed by a consulting firm for American Fuel & Petrochemical Manufacturers (AFMP), found that refineries have more than enough capacity to handle the increasing amount of light oil coming ... -
Growing U.S. Oil Export Debate Has Now Spread to Geopolitics
Mar 19, 2015 | Reuters
By Valerie Volcovici
Lifting the longstanding ban on U.S. crude oil exports would boost the country's economy and enhance its global leadership, a former senior Obama administration official will tell senators on Thursday, introducing a strategic dimension to the growing debate over selling American oil abroad. -
Feds Sell Nearly 1 Million Acres for Gulf Offshore Drilling
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
Federal officials brought in $539 million in high bids Wednesday for the rights to drill for oil and natural gas in almost 1 million acres in the Gulf of Mexico. The auction in New Orleans resulted in leases of 169 drilling tracts from 42 companies, the seventh offshore oil and gas auction under the Obama administration’s 2012-2017 offshore... -
Third Circuit Says Doctor Lacks Standing To Challenge State's Fracking ‘Gag' Rule
Mar 19, 2015 | BNA Daily Environment Report
By Mary-Anne Pazanowski
A federal appeals court agreed with a lower court that a Pennsylvania doctor wasn't injured by a state law that limits doctors' access to information about chemicals used in hydraulic fracturing, or fracking (Rodriguez v. Sec'y of Pa. Dep't of Envtl. Prot. of Pa., 2015 BL 70189, 3d Cir., No. 14-3467, 3/16/15). -
Senate Budget Aims to Expand Energy Production, Reform Permitting, Siting
Mar 19, 2015 | BNA Daily Environment Report
By David Schultz
Senate Republicans proposed a budget resolution for the coming fiscal year that is far less specific on environmental issues than the resolution introduced by their counterparts in the House earlier this week. However, the resolution introduced March 18 by Sen. Mike Enzi (R-Wyo.), chairman of the Senate Budget Committee... -
Senate Plan Envisions Extensive Action on Energy, Resource Issues
Mar 19, 2015 | E&E Daily News
By Nick Juliano
The Senate Republican budget released yesterday envisions action this year on a wide range of energy and natural resource issues, including nuclear waste management, mineral rights, environmental regulations and payments to regions with abundant federal lands. -
Pollution Liability Policy Covers Claims From Gas Explosion, Wisconsin Court Rules
Mar 19, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A pollution liability insurance policy provides coverage for injury and damage claims resulting from a natural gas explosion, not just injuries caused by exposure to natural gas itself, the Wisconsin Supreme Court unanimously ruled March 17 (Acuity, a Mutual Ins. Co. v. Chartis Specialty Ins. Co., 2015 BL 71186, Wis., No. 2013AP1303, 3/17/15). -
Petroleum Refiners Sue EPA Over Ongoing Renewable Fuel Standard Rule Delays
Mar 19, 2015 | BNA Daily Environment Report
By Andrew Childers
Petroleum refiners asked a federal district court to compel the Environmental Protection Agency to issue its overdue renewable fuel standard blending mandates for 2014 and 2015 in a lawsuit filed March 18 (Am. Fuel & Petrochemical Mfrs v. EPA, D.D.C., No. 15-cv-00394, 3/18/15). The American Fuel & Petrochemical Manufacturers and the... -
Obama to Order Cuts in Federal Greenhouse Gas Emissions
Mar 19, 2015 | The New York Times
By JULIE HIRSCHFELD DAVIS
President Obama will sign an executive order on Thursday to cut the federal government’s greenhouse gas emissions, a White House official said, his latest use of presidential power to address the root causes of climate change. It is part of Mr. Obama’s effort during his last two years in office to use an expansive interpretation of his presidential... -
Obama to Cut Federal Government’s Carbon Emissions
Mar 19, 2015 | The Washington Post
By Juliet Eilperin
President Obama will announce Thursday new steps in cutting the federal government’s greenhouse gas emissions, according to White House officials, an effort that several major U.S. firms will bolster by making their own carbon cuts. The move comes on the day the president is meeting with Britain’s Prince Charles – a prominent... environmentalist and -
2014: The Year We First Cut the Link Between Emissions and Economic Growth?
Mar 18, 2015 | Environmental Defense Fund
By Keith Gaby
For much of the last half-century, global economic growth was linked to increasing greenhouse gas emissions. That doctrine was called into question last week when the Energy Information Administration reported that the global economy expanded by 3 percent in 2014, while emissions of carbon dioxide from the energy sector held steady... -
New EPA Ozone Rule Will Hurt Economy
| The Hill - Op-Ed
By Reps. Pete Olson (R-Texas) and Bob Latta (R-Ohio)
Pollution is a serious problem. The thick, pea-soup smog that hung over major American cities like New York in the ’70s and ’80s — and famously hangs over Beijing today — is a legitimate concern in our communities. Looking at our cities today, we know that significant progress has been made. If done properly, we can continue the trend... -
Small Manufacturers Ask for More Input, Coordination for Rules
Mar 19, 2015 | E&E Daily News
By Katherine Ling
Federal agencies are failing to adequately consider small manufacturers when developing regulations, a witness panel told the House Small Business Committee yesterday. President Obama issued an executive order in 2011 directing federal agencies to take into account cumulative regulations and impacts on small businesses during... -
More Stringent Air Toxics Rule for Off-Site Waste, Recovery Facilities Set by EPA
Mar 19, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency will require more stringent toxic air pollutant controls for tanks and process vents at facilities that store, treat, recover or dispose of waste, used oil and used solvents, in a final rule published in the Federal Register March 18. -
EPA Critics Claim Lack Of Cost Review Undermines Basis For Utility MACT
Mar 18, 2015 | InsideEPA
By Stuart Parker
Utility and mining industry groups are urging the Supreme Court to scrap EPA's utility air toxics rule by arguing that the agency's failure to consider costs when deciding that the rule was “appropriate and necessary” makes the rule unlawful because costs are a central factor in the decisionmaking process of developing new regulations. -
Utilities, States Back Draft Coal Ash Bill As Advocates Warn of Major Human Harms
Mar 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
State environmental regulators tasked with implementing the Environmental Protection Agency's final coal ash rule and the utility industry voiced strong support March 18 for draft House legislation that they said would enable states to draft, implement and enforce their own permitting programs using minimum federal technical requirements... -
White House Reviewing Controversial Mining Rule
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
The White House is conducting its final review of a controversial regulation meant to protect streams from mountaintop removal mining. The regulation from the Interior Department’s Office of Surface Mining would change a 2008 rule issued by the Bush administration that a federal court struck down in February 2014. -
Dems Say GOP Coal Ash Bill is Premature
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
House Democrats are saying that the GOP’s bill on coal ash disposal is premature, since a regulation on coal ash has only just been made final. Democrats on the House Energy and Commerce Committee’s environment subpanel said at a Wednesday hearing that lawmakers should wait to see how the Environmental Protection Agency’s (EPA) coal ash... -
States Grant 165 Power Plants Extension To Comply With Mercury, Air Toxics Rules
Mar 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
State air agencies have granted 165 power plants a one-year extension for complying with the Environmental Protection Agency's 2012 mercury and air toxics standards, according to a survey conducted by the National Association of Clean Air Agencies. -
The Renewable Energy Fight
Mar 18, 2015 | National Journal
By Ronald Brownstein
With a strong environmental community, a vibrant fossil-fuel industry, and a thriving clean energy sector, Colorado encapsulates all the contending interests driving the complex politics of energy and climate. That's why there are important clues for the national energy debate in the recent partisan collision here over requirements ... -
Canada Readying Compliance Regime For Streamlined Environmental Permitting
Mar 19, 2015 | BNA Daily Environment Report
By Dean Scott
Recent changes to Canada's environmental permitting process have streamlined the process for major energy and other projects without sacrificing tough compliance requirements, a Canadian regulatory official said March 18. “All and all, we have a regime that is more streamlined” but still “retains features” from the previous permit system...
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Mar 18, 2015 | The Huffington Post
By Jason Linkins
This week, noted ab-haver Rep. Aaron Schock (R-Ill.) announced that he will be resigning his seat March 31 under the weight of multiple examples of shady, scandalous behavior. "The constant questions over the last six weeks," said Schock in a statement, "have proven a great distraction that has made it too difficult for me to serve the people of the 18th District with the high standards that they deserve and which I have set for myself." Given the circumstances, Schock's reference to "high standards" itself managed to set a high standard for lack of self-awareness.
Schock's rapid and farcical fall from grace began with a chance encounter between Washington Post reporter Ben Terris and an interior designer named Annie Brahler, whom Schock hired to make over his Capitol Hill office in the ostentatious fashion of the show "Downton Abbey." Terris took a bunch of photos of Schock's chandeliers and feathers, and Schock's communication director attempted to deter Terris from publishing those photos, apparently not knowing or caring how the Streisand Effect works. The result was that more reporters started getting curious about how Schock had been spending his time and money.
Eventually, it became clear that Schock was a serial chiseler, a profligate spender of taxpayer money and apparently a veteran filer of fraudulent reimbursement claims. The coup de grace came in the form of Politico reporters asking after a discrepancy in a mileage reimbursement claim -- Schock had "billed the federal government and his campaign for logging roughly 170,000 miles on his personal car from January 2010 through July 2014," but it turned out that when Schock sold the car, the odometer told the story of a vehicle that had not been driven half as many miles.
Evidently, soon after receiving an inquiry from Politico's reporters, Schock decided that the jig was up, and announced that he was bailing. This was treated as a big deal in the media! But a day later, one unasked question seems to loom: So what?
I sort of hate to prick the balloon of hype and self-congratulation over the scalping of Aaron Schock, but the truth is that the guy's misdeeds really do not amount to a hill of beans, or even a lesser quantity of beans. Like the man himself, Schock's crimes are trivial, and the fact that he ended up getting snared really only underscores how much corruption goes on elsewhere without anyone ever being held accountable for it.
Let's take a brief spin around some recent news, shall we? First stop: the Frank Lautenberg Chemical Safety for the 21st Century Act, which is set to be adjudicated by the Senate Environment and Public Works Committee. This bill is often framed as the result of a collaboration between Sens. David Vitter (R-La.) and Tom Udall (D-N.M.). But as Hearst's David McCumber reports, at least one lobbying organization for America's polluters -- the American Chemistry Council -- got a crack at the bill, clumsily leaving their digital fingerprints all over it. Jennifer Talhelm, Udall's communications director, responded to this revelation by saying that the bill was "shared with a number of stakeholders" for the purpose of "writing the best possible bill." In this case, that's sort of like asking the foxes for input on henhouse access points.
This week, The Huffington Post's Paul Blumenthal reported on the payday lending industry's massive effort to influence legislation that might regulate their predatory practices and protect consumers from financial harm. The effort was fueled by influence peddlers and dark money, a sector that's been weaponized by the "Supreme Court's 2010 ruling [that] led to the creation of super PACs and nonprofit groups so closely tied to congressional leaders that they regularly receive large contributions from those seeking a foot in the door." (In this particular case, a path was beaten straight to the top of House leadership.)
As Blumenthal reported in a separate article, the 2016 presidential race is essentially happening in an environment where no one is even pretending that campaign finance rules have any teeth at all:
More than a year and a half before Election Day, the 2016 campaign is already showcasing the complete breakdown of a federal campaign finance system rooted in strict limits on donations. Thus far, the unlimited money chase has made the invisible primary -- the period before the actual primary elections when candidates seek to consolidate support among influential party leaders and big-money donors -- rather visible...
At some point before the actual vote-counting starts, the non-candidates will have to reveal their true form and move on from pretending to not be a candidate to pretending to care about campaign finance rules. Then they will, in the eyes of the law, separate themselves from their super PACs and nonprofits.
(As a reminder, the official Eat The Press editorial position on candidates and super PACs is that we refuse to participate in the fiction that there is a separation of any kind between candidates, official campaigns and the super PACs that support them.)
Anyway! These are just this week's stories of institutional corruption for which no one is being shamed, scorched or hounded into resignation.
The fact is that because of the degradation of campaign finance laws, lobbying restrictions and the remnants of any firewall between influence peddlers and the legislators who spend most of their week on the phone with influence peddlers, we've now got a kind of idiot-proof system of corruption-enabling. So if you find yourself at the center of a career-killing media frenzy, it means you are actually dumber than an idiot. You have to be a showy, inept bum like Schock or former Virginia Gov. Bob McDonnell (R), leaving a paper trail of penny-ante crimes in your wake. Or you have to be caught in some basic example of a quid-pro-quo bribe, where hard currency is left stuffed in a freezer, like former Rep. William Jefferson (D-La.).
Schock's real crime, honestly, was that he didn't play this system correctly and parlay several decades of favor-trading into a big cash-out at the end of his political career. By thinking short instead of thinking long, and feathering his nest with cheap gifts (as well as actual, literal feathers), he broke the unwritten rules of the game. So he's been bounced in disgrace, while, say, former Rep. Eric Cantor (R-Va.) -- one beneficiary of the aforementioned dark money payoffs from the payday lending industry -- gets to lay up in the cut, relaxing with his seven-figure investment bank salary, his reward for playing the game correctly.
The gradual deterioration of our bulwarks against institutional graft is something that former New York gubernatorial contender Zephyr Teachout laid out at length in her 2014 book Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United. In January of this year, after New York Assembly Speaker and fraudster-extraordinaire Sheldon Silver (D) was finally brought low, Teachout accurately observed that "one high-profile indictment does not represent the dawn of a new democracy." Those are words worth remembering as the rest of Schock's saga plays out. As are these, per Teachout:
Corruption exists when institutions and officials charged with serving the public serve their own ends. Under current law, campaign contributions are illegal if there is an explicit quid pro quo, and legal if there isn’t. But legal campaign contributions can be as bad as bribes in creating obligations. The corruption that hides in plain sight is the real threat to our democracy.
Think of campaign contributions as the gateway drug to bribes. In our private financing system, candidates are trained to respond to campaign cash and serve donors’ interests. Politicians are expected to spend half their time talking to funders and to keep them happy. Given this context, it’s not hard to see how a bribery charge can feel like a technical argument instead of a moral one...
The structure of private campaign finance has essentially pre-corrupted our politicians, so that they can’t even recognize explicit bribery because it feels the same as what they do every day.
It's an easy, breezy environment in which to operate. And the media doesn't do much to make it harder. You can find no better illustration of this than when The New York Times' editors were faced with the challenge of rendering their endorsement for the 2014 New York gubernatorial race between Teachout and the Democratic incumbent, Gov. Andrew Cuomo. Here are the two infamous paragraphs of the Times' long-winded declaration of cowardice:
Mr. Cuomo became governor on that platform and recorded several impressive achievements, but he failed to perform Job 1. The state government remains as subservient to big money as ever, and Mr. Cuomo resisted and even shut down opportunities to fix it. Because he broke his most important promise, we have decided not to make an endorsement for the Democratic primary on Sept. 9.
His opponent in the primary is Zephyr Teachout, a professor at Fordham Law School who is a national expert on political corruption and an advocate of precisely the kind of transparency and political reform that Albany needs. Her description of Mr. Cuomo as part of a broken system “where public servants just end up serving the wealthy” is exactly on point, but we decline to endorse her because she has not shown the breadth of interests and experience needed to govern a big and diverse state.
The Times declined to endorse Cuomo because of his self-evident corruption, but could not support Teachout because of her lack of "breadth of interests and experience." Of course, the most pertinent kind of "experience" that Cuomo had, and that Teachout lacked, was experience in manipulating a corrupt system to one's own ends. As Gawker's Tom Scocca put it: "It is true that Teachout is not an experienced politician. The experienced politicians in New York State are hacks and criminals. That is the situation that the New York Times editorial board would like you to believe it cares about."
So what, in the end, did Schock do wrong? Simply put, he failed to be corrupt in a way that could supersede the media's default position, in which "good government" types are taken less seriously than the veteran government hacks and crooks who succeed within a broken system, forever spinning through well-greased revolving doors, selling out and falling upward. Schock got laid low because, ultimately, he lacked ambition -- he was scrabbling after nickel-and-dime benefits instead of setting his sights on a bigger payout. He was, compared to those who've mastered the art of institutional corruption, a joke. But -- ha, ha! -- really, the joke's on you.
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(ACC Mentioned) House Clears Bill Adding Transparency Requirements to Most EPA Actions
Mar 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
The House cleared legislation March 18 requiring the Environmental Protection Agency's actions to be based on data that is public and available for independent analysis.
The two-page Secret Science Reform Act (H.R. 1030), offered by House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas), passed the chamber on a 241 to 175 vote.
Companion legislation has been introduced by Sen. John Barrasso (R-Wyo.) in the Senate, though the White House has threatened to veto the bill over what it called “arbitrary, unnecessary, and expensive requirements that would seriously impede” the EPA's ability to complete its work (42 DEN A-1, 3/4/15).
“Today's vote brings commonsense reform and transparency to the EPA by requiring the agency to finally release the data behind their decisions, effectively pulling back the curtain and forcing the EPA to prove that their regulatory proposals can actually be achieved in the real world using real science,” House Majority Whip Steve Scalise (R-La.) said in a statement.
Supporters of the bill include the U.S. Chamber of Commerce, American Chemistry Council, the American Coatings Association, the Fertilizer Institute, the American Foundry Society, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute and others.
Opponents include the Union of Concerned Scientists, the American Lung Association, the American Association for the Advancement of Science, the American Association for Justice and a host of environmental groups, including the Sierra Club and Earthjustice.
Opponents Say Would Handcuff EPA
Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said the bill aimed to make it “impossible” for the EPA to do its job.
“The titles and text of these bills are cleverly designed to conceal their purpose, which is to protect industry from any oversight and any limits on their ability to pollute,” Rosenberg said in a statement. “They introduce unreasonable requirements, new delays and added levels of bureaucracy, and increase the power of corporations to interfere with laws meant to protect us. It's deceptive and cynical to promote these bills with claims about reform and transparency.”
Under the bill, the EPA would not be able to finalize any risk, exposure or hazard assessment; criteria document; standard; limitation; regulation; regulatory impact analysis; or guidance document unless the data used as the basis for the action is publicly available.
There has been significant disagreement about how much the bill would cost to implement. Despite a provision in the bill saying its implementation should not exceed $1 million per year, the Congressional Budget Office estimated it would cost $250 million annually.
The House Science, Space and Technology Committee strongly disagreed with that estimate, saying the bill did not require the EPA to disseminate any additional information and “simply says that EPA must utilize data that is already public and available to independent scientists” (50 DEN A-5, 3/16/15).
Amendments Rejected
Two Democratic amendments on the legislation failed.
One from Rep. Donna Edwards (D-Md.) would have authorized $250 million from fiscal years 2016 through 2019 to implement the legislation—the amount the CBO said would be required. It failed on a 164 to 254 vote.
Another, offered by Rep. Joe Kennedy (D-Mass.), would have permitted the EPA to use peer-reviewed science publications even if they are not publicly available. That amendment failed on a 184 to 231 vote.
A day earlier, the House passed legislation (H.R. 1029) modifying the operations, scope and selection process for members of the EPA's Science Advisory Board (52 DEN A-14, 3/18/15).
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(ACC Mentioned) Udall, Boxer Weigh in on TSCA Reform Ahead of Key Hearing
Mar 18, 2015 | E&E Daily News
By Sam Pearson
Lamwakers traded barbs yesterday ahead of a crucial Senate hearing today on a plan to update the Toxic Substances Control Act of 1976, in what is considered the most significant chance to amend the law in decades.
Though a proposal by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) -- S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- has the support of Republicans, the chemical industry and some Democrats, Sen. Barbara Boxer (D-Calif.) has led a group of environmental organizations, state attorneys general and public health organizations in a bid to hold out for a more protective proposal.
"This bill doesn't do everything I want, but I feel very good about the strong, bipartisan legislation that we introduced last week," Udall said yesterday, noting that it was his idea to name the bill after the late Sen. Frank Lautenberg (D-N.J.), whose widow will deliver a statement before the committee today. Udall also noted that the bill could be amended in markup or during an open amendment process on the Senate floor.
The committee today will also hear testimony from Jim Jones, U.S. EPA's assistant administrator for chemical safety and pollution prevention; Richard Denison, a senior scientist at the Environmental Defense Fund; Edward McCabe, senior vice president and chief medical officer at the March of Dimes Foundation; Lynn Goldman, dean of the Milken Institute School of Public Health at George Washington University and a former EPA assistant administrator; and Ken Cook, president of the Environmental Working Group.
Goldman said she testified in 1994 about fixing TSCA, only to see legislative efforts falter.
"An entire generation has elapsed since the last time that this was seriously under consideration," Goldman said, "and we should not inflict this law on the next generation."
Denison, too, said he often disagrees with the chemical industry but said lawmakers can't afford to waste another chance to fix the law. Industry influence criticized
Boxer's office has noted -- in a preview of an expected line of attack at today's hearing -- the chemical industry's involvement with Udall's bill, including an electronic Microsoft Word draft of legislation containing data showing that the document was prepared on an American Chemistry Council computer. Boxer also sought to emphasize her respect for Lautenberg's environmental legacy while noting that the heavy involvement of the chemical industry in the negotiations has belied Lautenberg's earlier statements of frustration with industry groups.
"The bill was generated by the chemical industry itself," Boxer said, displaying a poster of the document. She added, "Now maybe I'm old fashioned, but I don't believe that a regulated industry should be so involved in writing the bill that regulates them."
Boxer also dismissed criticism from congressional observers that the bill she co-authored with Sen. Edward Markey (D-Mass.) is not politically feasible. Ben Dunham, an ex-Lautenberg staffer who is now a director at McKenna Long & Aldridge LLP, which represents chemical firms and oil and gas companies, among others, stated in recent comments to The Hill that the Boxer-Markey bill is a "nonstarter politically."
Dunham has said that Lautenberg would have supported the Udall-Vitter proposal and that he understood the need to compromise with the industry (E&E Daily, March 10).
"He's at a law firm that represents the chemical companies, and is that his portfolio?" Boxer said of Dunham.
Dunham, who has also worked at Earthjustice and the U.S. Public Interest Research Group, said he was "looking forward to getting the conversation refocused on modernizing TSCA in a way that works for all sides, and I think we are very close with the Udall-Vitter bill." Opponents pledge focus on humanizing exposures
Boxer yesterday said Udall's bill would not move fast enough to address an estimated 1,000 chemicals that EPA believes are likely to require risk management action.
Boxer also slammed the bill for failing to include provisions targeting persistent, bioaccumulative and toxic chemicals (PBTs) and asbestos for expedited action, though the bill does contain provisions steering EPA assessments toward chemicals on a work plan list of substances currently under scrutiny -- some of which are considered PBTs.
The bill "does not even mention the word asbestos, and experts tell us unequivocally that the regulation of asbestos under the Udall-Vitter bill will never happen," Boxer said.
Supporters of the Udall bill dispute that asbestos cannot be banned, though the bill would not require that EPA take action immediately. Opponents also say EPA's deadlines to complete a regulatory action are unclear and could pre-empt state regulations before EPA regulations are issued.
The Udall bill says that once a chemical is designated as a high-priority substance, the agency must complete a safety assessment and make a safety determination within three years and complete a final rule restricting the chemical within another two years. The agency would be allowed to delay all of those deadlines, but only if the combined delays did not exceed two years -- leaving a maximum of seven years from the time a chemical was designated to the issuance of a final rule.
Alhough unlike earlier proposals, the Udall-Vitter bill would no longer pre-empt state laws for chemicals that EPA decides are a low priority, states would be required to notify EPA if the state "proposes an administrative action or enacts a statute or takes an administrative action to prohibit or otherwise restrict" the low-priority chemical.
That could result in EPA requesting information from states or designating the substance as a high-priority chemical and pre-empting the state rules with less restrictive action, if the agency found that a weaker rule would effectively reduce exposure to the chemical. To the benefit of states, EPA would be able to share confidential business information currently prohibited from disclosure, supporters note.
Under the Udall-Vitter bill, EPA would be required to add at least 10 chemicals to the high-priority list within six months but would also have to declare 10 low-priority substances. Within three years, the agency would have to designate at least 20 high-priority chemicals and 20 low-priority chemicals -- though Udall said the measure would still be a big improvement from current law.
That pace means it would take EPA decades to review the most harmful chemicals and remove them from commerce, Markey said.
"Nearly 100 years was too long for the Red Sox to wait to win the World Series," Markey said. "We can't wait that long to review dangerous chemicals."
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Mar 18, 2015 | PoliticoPro - Morning Energy
By Darius Dixon
FORMER GREEN HERO LAYS OUT LEGAL ATTACK ON EPA RULE: Opponents of the President Barack Obama’s climate change plan brought out the heavy artillery yesterday, turning to a former hero of the green movement to lay out a legal plan to bring down EPA’s upcoming rules to cut carbon dioxide emissions from power plants. Legal lion Laurence Tribe, a Harvard Law professor who taught constitutional law to President Barack Obama, entered the fight against EPA’s Clean Power Plan, accusing his former student of “burning the Constitution” in the effort to combat climate change.
Since submitting scathing comments on the pending Clean Power Plan rule to EPA in December on behalf of Peabody Energy — the world’s largest private sector coal company — Tribe, who represented Al Gore in Bush v. Gore, has become the darling of anti-EPA Republicans. “You know, I’ve cared about the environment ever since I was a kid. And you know, I taught the first environmental course in this country, and I’ve won major victories for environmental causes. But I’m committed to doing it within the law,” Tribe said.
People just don’t make insults like this anymore: “Laurence Tribe must not have been sworn in over a Bible today before testifying before Congress, because if he had been, that Bible would have burst into flames after his phony testimony about EPA’s legal authority to set standards for unlimited carbon pollution from power plants,” said David DiMartino, adviser to the Climate Action Campaign. Erica Martinson was there, and Pros can read her story here: http://politico.pro/1MJ3y13
TSCA TIME: The Senate Environment and Public Works Committee is set to hold a hearing this morning on bipartisan Toxic Substances Control Act legislation being led by Sens. David Vitter and Tom Udall. Their bill, which is named after the late Sen. Frank Lautenberg, will be defended today by the widow of the former New Jersey senator, Bonnie Lautenberg. She and Udall are making opening statements at today’s hearing but neither will take questions. Jim Jones, the EPA’s assistant administrator for chemical safety and pollution, will then testify, and then another panel is expected to include officials from the Environmental Defense Fund and George Washington University as well as Maryland attorney general Brian Frosh. The Vitter-Udall bill would update the 1976 TSCA law and has drawn a nearly even split of more than a dozen Democratic and Republican cosponsors.
But there’s some crazy Hogwarts-type sorting going on here. Sen. Barbara Boxer, the top Democrat on EPW, is leading the opposition, ripping the Vitter-Udall bill as a cave to the industry. Vitter-Udall have several senators, EDF, the Bipartisan Policy Center, former New Jersey governors Tom Kean, Christine Todd Whitman and Brendan Byrne, and others on their side. Meanwhile, Boxer has on her side Sen. Ed Markey, Natural Resources Defense Council and Earthjustice. And yesterday, six state attorneys general — New York, Washington, Iowa, Maine, Maryland, and Oregon — joined her house as well. Boxer, Markey and Sen. Bernie Sanders have introduced their own TSCA bill.
Attack, and counter. “To be a hundred percent candid and direct, their bill has been generated by the chemical industry itself,” Boxer said yesterday, pointing to a draft of the Vitter-Udall bill that included “computer coding” showing it originated at the American Chemistry Council. But Udall’s staff shared with POLITICO other suggested edits provided by critics of the bill, including NRDC, to underscore that they reached out to and received input from a lot of interested parties. The hearing starts at 9:30 a.m. in Dirksen 406.
HAPPY WEDNESDAY! I’m your host, Darius Dixon, and I need help collecting Rep. Aaron Schock puns and headlines. Schock and Awe. Schocking Resignation. Smell what the Schock is Cookin’? Schock Mocked. What will happen to Schock's Flock? Schock Treatment. Well, Schock’s charge is used up but there must be other puns out there, so what’d I miss? Send your energy commentary, news, scoops and tips to ddixon@politico.com, and follow us on Twitter @dariusss, @Morning_Energy and @POLITICOPro.
BOEM OIL AND GAS LEASE SALE TELETHON: Interior Secretary Sally Jewell is headed to New Orleans today to open bids at an oil and natural gas lease sale today. The sale starts at 10:10 a.m. and offers up 41.2 million acres for exploration and development in offshore Louisiana, Mississippi and Alabama. When bidding closed yesterday, 35 companies had submitted 195 bids on 169 blocks offered in the sale. BOEM estimates the sale could result in the production of 460 million to 890 million barrels of oil, and 1.9 trillion cubic feet to 3.9 trillion cubic feet of natural gas. Jewell will give some remarks on a teleconference at 10:30 a.m., and will join BOEM director Abigail Ross Hopper and BOEM regional director John Rodi for another call at 11:45 a.m. to announce the results of the sale. A map of the tracts getting bids will be available here at 8 a.m.: http://on.doi.gov/1BvQyU1
"This sale will be interesting due to low oil prices, which just dropped further this week,” National Ocean Industries Association President Randall Luthi said in a statement. “But even in this environment, U.S. oil and natural gas companies are planning ahead, and remain committed to the Gulf of Mexico ... Shorter time frames for active exploration within the lease terms are factors that may impact bidding in this sale, especially for companies tight on capital.”
ICYMI: Andrew Restuccia was on the scene for Jewell’s speech at the Center for Strategic and International Studies, where she talked about the agency’s pending fracking rule, royalty rates and stream buffer regs: http://politico.pro/19xVUZk
HOUSE PASSES EPA SCIENCE BOARD BILL: The House passed, 236-181, Rep. Frank Lucas’ EPA Science Advisory Board Reform Act yesterday billing it a “good-government bill; it reflects the values we should uphold regardless of which side of the political aisle we are on.” Well, two Democrats agreed and voted in support of the bill while one Republican voted no.
Now, House Science Chairman Lamar Smith’s Secret Science Reform Act is slated to reach the floor action today. There are two Democratic amendments up for debate and votes are scheduled for early afternoon. The bill would bar EPA from using any scientific studies to set regulations without releasing all underlying data and research to the public for review. Much of the focus of prior hearings and negotiations has been on several major epidemiological studies that were used in air pollution regulations, and EPA’s failure to turn over all of the related data to Congress. EPA has said it could not provide medical data while protecting identifying information of participants. There’s a companion bill to Smith’s measure in the Senate, introduced by Wyoming Republican John Barrasso. The White House says it intends to veto both GOP EPA bills.
DOE NEEDS YOUR U COMMENTS: The Energy Department is putting together a new secretarial determination on the management of federal “excess” uranium stocks, and the 20-day window for public comments opens today. DOE has stocks of uranium in excess of what is currently needed for national security purposes, and since the material is worth quite a bit of cash, the agency barters it for services such as the cleanup work at shuttered uranium processing plants. But there are limits on such arrangements. Mainly, the exchanges should “not have an adverse material impact on the domestic uranium mining, conversion or enrichment industry.” The deals that DOE is trying to cut will release up to 17 percent of U.S. uranium and conversion needs over the next ten years. DOE has already collected comments from across the nuclear industry. The Federal Register notice: http://1.usa.gov/19x1Y4t
CENTRUS’ NEW TOP LOBBYIST: Jim Howe has been promoted to vice president of government relations for Centrus Energy Corp., taking over for John Neumann, who left earlier this month. Howe will spearhead Centrus’ advocacy efforts with Congress, the administration and state governments. He joined Centrus in July 2010 as the company’s government relations director after moving from the Department of Homeland Security, where he was deputy assistant secretary for legislative affairs, and the U.S. Coast Guard before that. (h/t POLITICO Influence)
THE STARS AT NIGHT ARE BIG AND BRIGHT: Solar developer SunEdison will announce today a deal to build solar farms totaling 150 megawatts of capacity in west Texas to provide power to some 45,000 customers in the Williamson County city of Georgetown. With a power purchase agreement that is one of the largest solar agreements in Texas's ERCOT grid, the plants are projected to be connected by 2016 and could provide 9,500 gigawatt-hours of electricity through 2041, according to SunEdison, which is both building and financing the project. Interim city manager Jim Briggs said in a statement that the deal makes Georgetown Utility Systems one of the biggest municipal utilities in the U.S. "to be 100% renewable powered.” SunEdison says it will create nearly 800 jobs during construction.
Fun fact: Coincidentally, Georgetown is home to a large retirement community called Sun City Texas.
GREENS FILE FOIA APPEAL WITH DOT ON OIL TRAIN SAFETY LOBBYING: ForestEthics and allied groups today filed an appeal aimed at shaking loose correspondence between Transportation Department officials crafting a hotly anticipated crude-by-rail safety rule and 97 individual lobbyists for the oil and rail industries. The groups said in their appeal letter to the Federal Railroad Administration that the agency did not respond to a Freedom of Information Act request filed Jan. 15. The letter, a copy of which was obtained by POLITICO, warns that “we will consider taking legal action” if records are not released within 20 days.
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(ACC Mentioned) Democrats Boxer, Udall Fight Over Lautenberg's Legacy
Mar 18, 2015 | National Journal
By Jason Plautz
Democratic Sens. Barbara Boxer, Edward Markey, and Tom Udall are normally eye-to-eye on most issues, especially when it comes to the environment. Now, they're at loggerheads over the legacy of the late liberal Sen. Frank Lautenberg and a bill that would in theory enhance the power of the EPA.
Lautenberg had tried for years to update the nearly 40-year-old law regulating the chemical industry that has left the Environmental Protection Agency powerless to test or regulate the roughly 80,000 chemicals in commerce, even ones proven to be harmful, such as asbestos or BPA.
Just as Lautenberg worked with Louisiana Republican and EPA foe David Vitter, so has Udall, the New Mexico Democrat who also is the son of former Interior Secretary Stewart Udall.
After two years of drafting, Udall and Vitter this month unveiled a bipartisan agreement to overhaul the 1976 Toxic Substances Control Act, setting up minimum benchmarks for EPA to test and regulate chemicals, setting up a new user fee system to pay for it, and clearing up a lengthy backlog to allow EPA to move more quickly. Now with up to 20 cosponsors evenly split between two parties and the support of Republican Environment and Public Works Committee Chairman James Inhofe and the chemical industry, it would seem to have a clear path to the floor.
Immediately, the cracks on the Left began to show. The next day, Boxer and Markey unveiled a competing TSCA reform bill, saying the Udall-Vitter measure would undercut states' ability to regulate chemicals and give the industry too much power over what chemicals EPA controls, and how the agency does it.
On Tuesday, Udall's office brought out chemical experts to talk about his bill. Not to be outdone, Boxer and Markey held their own news conference opposing the Udall-Vitter measure with a dozen public health advocates and legal officials, including famed California activist Erin Brockovich.
Boxer's office has been accused of leaking draft copies of the bill to drum up opposition. There were reports that she questioned Lautenberg's state of mind when he signed the original agreement with Vitter. She's even accused Udall and Vitter of letting the American Chemistry Council write the bill, pointing to a Word document showing that ACC had edited the file (both ACC and Udall's office have said that just reflects that ACC had commented on the bill, as had many outside groups).
Even the bills' names can be seen as jabs at each other. After Udall and Vitter named their bill after Lautenberg, who passed away in 2013 after decades of work on chemical reform, Boxer and Markey rolled out their own bearing the names of Alan Reinstein, who passed away after asbestos exposure, and Trevor Schaefer, who survived a brain tumor after being exposed to toxic substances.
"I loved Frank Lautenberg so much, and it's with deep respect and a heavy heart that I say all of this about a bill that bears his name," Boxer said.
Boxer opposed the original bill from Vitter and Lautenberg when it was introduced in 2013, and while the measure has since moved farther to the left based on feedback, and was the backbone for the new legislation, it still lacks support from key public health groups.
Asked about whether there were changes that could be made to the compromise bill, Boxer said she could "tick off 100 things that I would change."
The rhetoric has become so heated that Udall had to plead for cooler heads at an Environment and Public Works Committee hearing on the bill Wednesday.
"I urge everyone participating in this hearing to reject attacks on anyone's integrity, character and motivations. Unfortunately I've fielded a few of those," he said. "They do not concern me because they are absurd and unfounded, but they do a disservice to the legislative process."
The major sticking point between the camps has been on whether and when the EPA can supersede state regulations on chemicals. The bill's sponsors say EPA rules would preempt state laws only after it designates a high priority chemical (rather than a low priority designation that does not require new restrictions) and only for certain uses. So if EPA were evaluating a chemical's use in, say, food packaging, a state still could enforce laws about that chemical's treatment in other household products. A waiver process also would give states an avenue to keep their laws.
But the bill's opponents have said the language would go much further. The offices of eight attorneys general, including those from California and Washington, have said that the bill would effectively block their rules and allow the industry to produce potentially harmful chemicals while the EPA deliberates. Boxer, whose home state has among the nation's toughest chemical laws, has made it clear that any bill that weakens or upsets those regulations is a no-go.
But that hasn't damaged support from other Democrats whose states haven't stepped up on chemicals or can't afford to. Michigan freshman Sen. Gary Peters signed onto the bill after Wednesday's hearing, and Virginia's Mark Warner also cosponsored it this week, bringing the total of Democratic cosponsors to ten.
There's plenty else to tackle on the bill, but those issues appear somewhat less contentious. The Udall-Vitter bill says chemicals can only be regulated if they pose "unreasonable risk" to the public, a step down from the more stringent "reasonable certainty of no harm" standard in the Boxer-Markey bill. The Udall-Vitter bill sets a minimum requirement that EPA regulate 25 chemicals in the first five years, a number critics have said is too low given the thousands of chemicals in commerce.
Udall spokesman Jen Talhelm said his office was "optimistic about the support behind the bill and the productive discussions that are going on." Members such as Democrat Tom Carper of Delaware have been working behind the scenes to bring members together, and several committee members say it's an area where they see a chance for a bipartisan agreement.
Even Markey said the competing bills didn't portend doom, saying there was enough will to reform the outdated bill.
"Many issues start with Democrats not all lined up," he said. "I'm always an optimist about the legislative process and the ability for people to hear the evidence. The process leads to people being more open minded to changes that can make it better."
The EPW hearing heard from Lautenberg's widow, Bonnie, who has lent her support to the Udall-Vitter language as a capper to her late husband's legacy. She pushed the committee to find common ground.
"Please work out your differences for every family," she said at the hearing. "Far too many chemicals are on the market without any sort of testing."
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(ACC Mentioned) Chemical Regulation Overhaul Bill Faces Opposition in Senate
Mar 19, 2015 | AP (in Standard Examiner)
By Matthew Daly
A bipartisan bill that would update regulation of harmful chemicals for the first time in nearly 40 years is drawing opposition from some Democrats and environmental groups, who charged on Wednesday that the measure is a step backward in protecting health and the environment.
The bill is proposed by Sens. David Vitter, R-La., and Tom Udall, D-N.M., who call it a common-sense update to a 1976 law widely seen as ineffective.
The bill would set safety standards for thousands of chemicals that are now unregulated and offer protections for those vulnerable to their effects such as pregnant women, children and workers. It also would set deadlines for the Environmental Protection Agency to act, while blocking states’ action in cases where EPA is addressing the same issues.
Regulation of chemicals took on new urgency after a crippling spill in West Virginia last year contaminated drinking water for 300,000 people. The chemical, crude MCHM, is unregulated under current law.
The bill, a product of two years’ negotiations, is named after the late Sen. Frank Lautenberg, a New Jersey Democrat who pushed for chemical reform before his death in 2013.
Lautenberg’s widow, Bonnie, testified at Wednesday’s hearing. While not perfect, the bill is an improvement over current law and would protect families from toxic chemicals such as asbestos, formaldehyde and hundreds of others, Lautenberg said.
“Please work out your differences for every family,” she implored her husband’s former colleagues. “Far too many chemicals are on the market without any sort of testing.”
A hearing on Wednesday before the Senate Environment and Public Works Committee featured a role reversal from usual positions taken by the two parties. Republicans, who often push for the rights of states to set their own guidelines, backed a bill that would create a national standard for chemicals while granting enforcement power to an agency Republicans often criticize — the EPA.
Democrats used that argument on Wednesday against the bill’s supporters, arguing that the measure would pre-empt aggressive regulation by states such as California, Vermont and Massachusetts. Industry groups have said they welcome regulation of chemicals but said they should not have to contend with a potential for 50 different standards across the country.
Sen. Cory Booker, D-N.J., who holds Lautenberg’s former seat in the Senate, said the pre-emption of state enforcement was “a serious problem” in the Udall-Vitter bill.
“Why should we be afraid of states’ rights to take actions, especially when the EPA’s budget is continually hacked away” by Republicans who control Congress, Booker asked.
Sen. Bernie Sanders, a Vermont independent who caucuses with Democrats, said he found it ironic that Republicans would push to give power to the EPA — “the same EPA that they want to cut the budget of. Frankly, I don’t think that passes the laugh test if I may say so.”
Vitter said the bill would protect public health and the environment while ensuring that “American industry has the ability to continue to lead and innovate.” The alternative is to allow both parties to push “failed ideas that only guarantee the survival of an antiquated law,” he said.
Sen. Barbara Boxer, D-Calif., charged that the bill was generated by the chemical industry itself, noting that computer coding on a draft bill identified the American Chemistry Council, the chief lobbying group for the chemical industry.
Udall’s staff disputed Boxer’s claim, saying the chemical group was one of many that suggested edits to the bill, including the Natural Resources Defense Council and other environmental groups.
The chemical group “had no more input than environmental groups, and as a result of the input from many stakeholders, the bill has moved further toward what environmental groups and others said they wanted to see,” Talhelm said.
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(ACC Mentioned) Senate Seems Poised To Advance 'Compromise' Chemical Regulation Bill
Mar 18, 2015 | The Huffington Post
By Kate Sheppard
Senators traded some jabs at a hearing on chemical safety legislation Wednesday, but it seems likely that the bill will advance out of the Environment and Public Works Committee.
The hearing focused on legislation that Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced last week to reform the 39-year-old Toxic Substances Control Act, the law currently governing American chemical safety policy. Their bill is named after the late Sen. Frank Lautenberg (D-N.J.), who had long crusaded to update the act.
The current law has long been criticized in and out of Congress for being out-of-date and too weak to adequately regulate the slew of chemicals now on the market. But the Udall-Vitter bill, which has more than a dozen bipartisan co-sponsors, has been touted as the first reform bill in decades that has a chance of passing.
The bill, Vitter argued at the hearing, "is the only realistic shot we have at reforming a very broken and dysfunctional system."
The bill would require safety testing for new chemicals, grant the Environmental Protection Agency more oversight to review the health and safety of chemicals, require chemicals to meet tougher safety standards, and create a list of high-priority chemicals for EPA to evaluate.
The bill has been criticized in many corners of the environmental and public health community for not going far enough, and for limiting states' authority to set their own rules on specific chemicals going forward if the federal EPA is already acting on them.
Udall defended the bill as the outcome of months of negotiations and bargaining between the co-authors and a variety of outside organizations. "Criticism of the substance of this legislation is legitimate from both sides -- it is a compromise product," he said.
Critics of the bill have argued that it was crafted with the interests of the chemical industry in mind, rather than consumers. That impression was furthered by a report earlier this week that an early draft of the bill Udall's office circulated was traced back to the American Chemistry Council, the industry's leading lobbying organization. Udall's office told Hearst Newspapers that the draft was written in the congressman's office, but must have been saved and sent back to them in the course of reviews with various stakeholder organizations.
Udall said the co-authors remain committed to getting legislation passed. "Sen. Vitter and I are not accustomed to working together on environmental issues," he said at Wednesday's hearing. "There were times when discussions broke down, but we always came back to the table because we shared a common goal."
The hearing featured representatives from public health and environmental groups. Dr. Lynn Goldman, dean of the Milken Institute School of Public Health at George Washington University, testified that the bill could be improved in terms of its preemption of state authority and the timelines it lays out for EPA regulations, though she supports the updates to the decades-old law. "I do support this legislation, at the same time recognizing that there are avenues that could be taken to make it stronger," she said.
Richard Denison, senior scientist at the Environmental Defense Fund, also argued that the bill, while not perfect, is the "best chance in a generation to bring this law into the 21st century."
Maryland Attorney General Brian Frosh also criticized the bill's position on state rule-making, saying it would limit states' rights. The proposal would grandfather in existing, tougher state laws passed before this year, but prevents states from passing new laws on a chemical if the EPA is acting on that chemical. "Reform is needed, but that reform must be built on a foundation of meaningful protections of the public," Frosh said.
Bonnie Lautenberg, the widow of Sen. Lautenberg, spoke at the hearing as well and accused opponents of the Udall-Vitter bill of "letting the perfect be the enemy of the good."
But Sen. Barbara Boxer (D-Calif.) argued that the measure "is actually worse than the existing statute," holding up a list of 450 organizations that have opposed the bill as written. Boxer and Sen. Ed Markey (D-Mass.) introduced their own competing legislation last week.
"I want a good bill. I don't want a perfect bill," Boxer said. "And we don't have it here."
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(ACC Mentioned) Maddow: Lawmaker Forgets To Take
Mar 18, 2015 | Real Clear Politics
Rachel Maddow reports on the discovery that a draft of a new law to make much-needed updates to regulations on the chemical industry was authored by the American Chemistry Council, the leading trade organization and lobbyist for the chemical industry.
MADDOW: The chief Democratic negotiator on this bill is Tom Udall of New Mexico, who of the course of his career has generally been seen as a great pro-environmental advocate.
Senator Udall has been in Congress since 1998. Suddenly, though, last year for the first time, out of the blue, he started getting significant campaign donations from the American Chemistry Council.
They also ran this ad supporting Tom Udall for reelection. It's a strange ad. It weirdly says at the end that New Mexico voters should call Tom Udall to thank him for being so great -- brought to you by the American Chemistry Council.
And now, it is Senator Udall's office that has circulated this draft of the chemical bill that is stamped in its properties on Microsoft Word as having been written by somebody at the American Chemistry Council.
Senator Udall's office told us tonight that this has been a big misunderstanding. They told us that the American Chemistry Council did not draft the bill. They said in the process of communicating with them and other stakeholders about this bill, the American Chemistry Council must have just saved some parts of the correspondence and then sent that saved document back to Senator Udall's office, and the somehow what the Chemistry Council sent them ending getting circulated by Senator Udall as his draft of the bill. Huh? -
Mar 18, 2015 | The Times-Picayune
By Bruce Alpert
A new report says that the chemical industry is spending heavily on campaign contributions and lobbying with an overhaul of chemical regulations on the congressional agenda.
The report by MapLight, a non-partisan group that evaluates campaign contributions and lobbying, said that the 17 sponsors of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, favored by industry, received nearly 70 percent more in donations from the top 10 companies and organizations than senators who didn't sponsor the bill. The report was issued Wednesday (March 18) on the same day the Senate Environment and Public Works Committee held a hearing on the chemical safety legislation.
Sen. David Vitter, R-La., the bill's lead Republican sponsor, received $14,000 from the industry during the 2014 election cycle, though he wasn't on the ballot, MapLight said. His super PAC, which is backing his run for Louisiana governor, received $150,000 from the American Chemistry Council, which represents many of the largest chemical manufacturers.
The report said that Sen. Bill Cassidy, R-La, one of the lead co-sponsors, received $71,500 in chemical industry contributions for his successful 2014 run for the Senate. That ranked him No. 8 on the list of leading Senate recipients of chemical industry donations.
Sen. Tom Udall, D-N.M., the lead sponsor of the chemical safety bill along with Vitter, received $15,000 in contributions for his successful 2014 re-election bid.
The Udall/Vitter bill allows EPA to regulate chemicals they deem need oversight, without concern for the costs of the regulations, with an emphasis on rules that protect pregnant women, children and workers. It sets regulations for EPA to act.
The Senate Environment and Public Works Committee's hearing on the Udall/Vitter bill was at times contentious.
Vitter rejected complaints from some witnesses and Democratic Senate colleagues who said the bill would preempt state regulations of chemicals once the federal government decides to regulate them. It allows state regulations that pre-date January, 2015, to remain.
Vitter said that chemicals are "products," not a production process, and that the federal government generally is responsible for regulating products such as prescription drugs and food and that chemicals should be no different.
Requiring companies to comply with both state and federal regulations poses problems for chemicals being distributed nationally and just isn't efficient, Vitter said.
Still, there was some support expressed for a system that would allow states to supplement oversight and regulations established by the federal EPA/.
Sen. Sheldon Whitehouse, D-R.I., said that Republicans have been successfully working to slash the Environmental Protection Agency's budget for years, and that an agency that doesn't have the resources can't oversee effective and timely regulations.
But Vitter argued that the bill he and Udall introduced includes a fee on chemical producers to pay for enhanced chemical regulations. This is one case, he said, where the sponsors ensured that impacted industry paid for the needed regulations.
The bill is named for the late Sen. Frank Lautenberg, D-N.J., who in 2013 co-sponsored an earlier version with Vitter of the 1976 federal chemical law, which both industry and environmentalists agree is ineffective.
Lautenberg's widow, Bonnie, testified at Wednesday's hearing, saying the updated Udall/Vitter bill isn't perfect, but would enable the EPA to regulate dangerous chemicals such as formaldehyde.
Still, Sen. Barbara Boxer, D-Calif., who has introduced an alternative bill that would allow states to impose their own chemical rules, said she prays the bill "can be fixed."
"Problems with the Udall-Vitter bill include that it only provides for the assessment of just 25 dangerous chemicals out of the 80,000 in existence today; eviscerates the rights of the states to act to protect their people from toxic and cancer-causing chemicals; does not even mention the word asbestos, and experts say that regulation of asbestos under the Udall-Vitter bill will never happen; and does not specifically address children's cancer clusters and chemicals that build up in your body -- known as persistent bioaccumulative and toxic chemicals," Boxer said.
Boxer said that the bill was written with the help of the American Chemistry Council, noting a computer coding from the industry lobbying group. But aides to Vitter and Udall insisted that the council was just one of the organizations consulted on the bill. Input was also received from environmental groups, they said.
Vitter said the bill he and Udall negotiated will insure that Americans are protected from dangerous chemicals, but that industry has the ability to innovate products that will help spur the U.S. economy and technological advances.
Louisiana Attorney General Buddy Caldwell joined with six other attorneys general to support the Udall/Vitter bill.
"I applaud Senator Vitter and Cassidy for sponsoring this important piece of legislation," Caldwell said. "This outdated law has been detrimental to public health and safety, while also bad for business. Louisiana has the second largest chemical industry in the nation. The passage of this act is necessary for Louisiana and the rest of the nation to move its environmental policy forward and provide common sense change to archaic EPA regulations."
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(ACC Mentioned) A Chemical Safety Law with Industry's Red Pen (Literally) All Over It
Mar 18, 2015 | Common Dreams
By Deirdre Fulton
The leading trade organization and lobbyist for the chemical industry left its computerized fingerprints all over a chemical safety reform bill being debated this week in Congress, according to "rudimentary digital forensics" performed by Hearst News Service.
The findings, revealed the day before Wednesday's Senate Environmental and Public Works Committee hearing on the legislation, support environmental and public health advocates' claim that the bill is backed by the very industry it is meant to regulate.
"In recent days, a draft of the bill—considered the product of more than two years of negotiation and collaboration between Sen. David Vitter (R-La.) and Sen. Tom Udall (D-N.M.), and both chemical industry and environmental groups—was circulated by Udall's office ahead of the hearing," writes Hearst Washington bureau chief David McCumber. "The draft bill, obtained by Hearst Newspapers, is in the form of a Microsoft Word document. Rudimentary digital forensics—going to 'advanced properties' in Word—shows the 'company' of origin to be the American Chemistry Council."
U.S. Sen. Barbara Boxer (D-Calif.), who has introduced a competing bill that is favored by health, environmental, and consumer advocates, criticized what she perceived as industry influence over policy-making.
"It was clear from the computer coding that the final draft originated at the American Chemical Council itself," she said on Tuesday, having seen a copy of the document. "Maybe I’m old fashioned, but I do not believe that a regulated industry should be so intimately involved in writing a bill that regulates them."
And Environmental Working Group president Ken Cook, who was scheduled to testify against the Vitter-Udall bill at Wednesday's hearing, added: "We’re apparently at the point in the minds of some people in the Congress that laws intended to regulate polluters are now written by the polluters themselves."
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(ACC Mentioned) Senate Panel Renews Debate on Toxins Law
Mar 19, 2015 | Rutland Herald
By Neal P. Goswami
Industry representatives are pushing back against language inserted into a Senate health care bill late last week that would alter a 1-year-old law that looks to regulate toxins in commercial products.
The Senate Health and Welfare Committee heard testimony from several people Wednesday looking to scrap the language added to S.139 on Friday. It would make changes to Act 188, which Gov. Peter Shumlin signed into law last year after an arduous back-and-forth process that had been finalized in the waning hours of the biennium.
The law created a reporting mechanism for manufacturers that use certain chemicals in children’s products. Beginning in July of next year, manufacturers that use chemicals designated by the state as “chemicals of high concern to children” must disclose information about those chemicals to the Department of Health.
The law also created a working group that would make recommendations to the health commissioner about regulating designated chemicals.
But an amendment to S.139 that the committee approved Friday would make significant changes to the law. It would allow the health commissioner to add chemicals to the list through rule-making based on “credible, scientific evidence,” removing language in the law that calls for “the weight of” such evidence to be considered.
Opponents of the change say it could allow a single study to form the basis for regulating a chemical.
It would also change the authority of the working group. Instead of allowing the health commissioner to adopt rules regulating the sale or distribution of children’s products containing such chemicals “upon the recommendation” of the working group, the commissioner could act “after consultation” with the group. The change would diminish the oversight and purpose of the group, which includes members with varying viewpoints.
The amendment would loosen the standard for allowing the health commissioner to act by changing the threshold from “children will be exposed” to “there is potential for exposure.”
And it would remove language calling for “a probability” that exposure or frequency of exposure to such chemicals could cause or contribute to adverse health impacts before the health commissioner could act.
Several industry representatives, including William Driscoll, vice president of Associated Industries of Vermont, testified Wednesday against the changes.
“We feel that however well-intentioned, the amendments … are unwarranted and actually undermine the statute,” he said.
Allison Crowley DeMag, a lobbyist representing the American Chemistry Council, said the language undermines the process undertaken last year to craft Act 188. The law represented a deal, she said, and the amendment seeking to change it would “undo what was a very collaborative effort last session.”
“At the end of the day, everyone in this room, as far as I know, we all gave some, we all won some, but we all came to a deal. Part of that deal was implementing this working group that represented all different types of interests,” she said.
Crowley DeMag urged the committee and others supporting changes to the law to allow it to be enacted as passed last year.
“The working group hasn’t even been appointed yet, and here we are undoing what I thought was a very collaborative effort last session. I’m just really disappointed in the process,” she said. “If the chemical industry had come out and done something like this, I know people would be very, very concerned about it. I think that we should just go forward with what we did last session, whether we liked it or not, and just move ahead with the process as it was outlined last session.”
Representatives of IBM and the Personal Care Products Council also testified against the amendment, while representatives from Seventh Generation and Vermont Conservation Voters testified in favor of the changes.
Sen. Ginny Lyons, D-Chittenden, vice chairwoman of the committee, said she is looking to make changes because of potential legislation in Washington that might undercut the state’s ability to regulate chemicals. Changes under consideration to the federal Toxic Substances Control Act could prevent the state from strengthening its law in the future, she said.
“We heard that the Congress is acting on TSCA to make changes which would hold states exactly where they are with respect to chemical regulation, or pre-empt us altogether, which I hope wouldn’t happen,” she said.
Lyons also said she is looking to enact language the Senate passed last year that the House removed. Because the session was ending, the two chambers did not go to a conference committee, and the Senate had to settle for the House version, she said.
“We wanted to approve the language that was passed in the bill last year to ensure that our Department of Health can do its work,” she said. “This opens a conversation that we were unable to have last year because the bill went right up to the end.”
Driscoll said there is no need for the state to rush because the changes being considered to the federal law would pre-empt state actions taken after Jan. 1 of this year. And the federal legislation is not focused on the “procedural matters” addressed in the committee’s new language, he said.
Others see the issue differently, including the Vermont Public Interest Research Group. Executive Director Paul Burns said there was never a deal in place to pass the law.
“Right up until the end the industry lobbyists were opposing it and were opposing the Senate for suspending the rules to take it up. This notion that there was a deal, and certainly a deal that included an understanding that nobody would ever come back to try to change the law, that just doesn’t exist. That’s just a fantasy,” Burns said.
He said the “modest changes” added to S.139 are intended “to make a law that is designed to protect kids from toxic chemicals a little more effective.”
If changes are made to the federal law, the state would be prevented from taking any action against chemicals that the federal Environmental Protection Agency considers regulating for a seven-year period, Burns said.
“It puts it on a list, so seven years later they may decide to regulate or they may decide not to. In all that time we would be prevented from taking any action,” he said.
By acting now, the state may be allowed to continue to regulate chemicals, depending on what Congress passes, according to Burns.
“That could be grandfathered in … if we could make it happen soon enough,” he said.
There are differences of opinion among the committee’s five members. Sen. Dick McCormack, D-Windsor, said he believes the committee’s amendment is superior to the language that’s in the law.
However, McCormack also said he believes “a deal is a deal” and making changes now could hinder future efforts to craft collaborative policy.
“If a deal was made I’m reluctant to just say, ‘Well, it was a bad deal so now we’re going to make a new deal,’” he said. “I’ve got to roll this one around in my mind for a little while.”
Lyons challenged his position.
“So we’d never change a law again? I’m going to push you on that one,” she said.
Lyons said the Senate’s position last year was abandoned because of the time crunch.
“The deal, as it left the Senate, was all consumer products were being regulated. That was a deal I felt very firm about,” she said. “Some of the changes that were made in the House, I think, have been identified here as being problematic.”
First-term Sen. Brian Collamore, R-Rutland, indicated he supports keeping the law as it is.
“I do think that you had disparate parties brought together. There was concession on both sides, an agreement was reached, and Act 188 was passed,” he said. “You haven’t allowed the process to work yet.”
Meanwhile, Sen. Anthony Pollina, P-Washington, indicated his willingness to amend the law. Committee Chairwoman Claire Ayer, D-Addison, was absent Wednesday due to a family emergency.
The committee is expected to decide this week whether to seek changes to Act 188. -
Mar 18, 2015 | MapLight
By Daniel Stevens
Today, Wednesday March 18, the Senate Environment and Public Works Committee is scheduled to hold a hearing on the ‘The Frank R. Lautenberg Chemical Safety for the 21st Century Act,’ which, if passed, would overhaul how the federal government regulates chemicals. The bill is a product of negotiations between Sen. David Vitter (R-LA) and Sen. Tom Udall (D-NM), who introduced the bill last week. A new MapLight analysis of campaign contributions and lobbying spending has found that the *chemical industry, which strongly supports the new legislation, has dramatically expanded its political spending in recent years.
Campaign Contributions
The chemical industry's top spenders have ramped up their campaign contributions as Congress has started overhauling the government's chemical regulations. During the 2014 election cycle, for instance, the top 10 chemical companies and organizations*, including 3M and the American Chemistry Council among others, contributed more than $1 million to current members of the Senate, including to all 17 senators who sponsored or cosponsored the Udall/Vitter legislation.
The bill’s 17 sponsors and cosponsors received, on average, nearly 70 percent more money ($15,176) from the top 10 companies and organizations during the 2014 election cycle compared to senators who did not cosponsor the bill ($9,049).
Sen. Vitter (R-LA), received $14,000 from the companies and organizations during the 2014 election cycle. He received $58,500 from the companies during the last six years. Additionally, the American Chemistry Council has given $150,000 to a super PAC supporting Sen. Vitter's gubernatorial bid.
Sen. Udall received $15,000 from the companies and organizations during the 2014 election cycle.
The ten chemical companies and organizations gave, on average, 2.8 times more money ($14,380) to Republican Senators compared to Democratic Senators ($5,054), during the 2014 election cycle.
Overall, the 10 chemical companies and organizations contributed $2.7 million to current members of the Senate during the last three election cycles.
Lobbying
The chemical companies and organizations have also ramped up their lobbying spending. The former chairwoman of Senate Environment and Public Works Committee, Sen. Barbara Boxer (D-CA), told The New York Times that she had “never before seen so much heavy-handed, big-spending lobbying on any issue.” The numbers bear that out.
Between 2013 and 2014, the 10 chemical companies and organizations in this report spent more than $154 million lobbying Congress and the federal government.
In 2014 alone, the 10 companies and organizations spent more than $76 million on lobbying. The top spender, Dow Chemical, spent more than $14 million. Dow, along with other industry giants DuPont, Bayer, and 3M, is a member of the American Chemistry Council, which strongly endorsed the Udall/Vitter legislation.
Peak Spending
Notably, campaign contributions and lobbying spending from these 10 companies peaked in the middle of 2013, around the same time the late Sen. Frank Lautenberg (D-NJ) introduced the Chemical Safety Improvement Act. This bill, which provided the foundation for the Udall/Vitter bill, was introduced on May 22, 2013.
The 10 chemical companies and organizations spent their highest amount ever on lobbying, during the third quarter of 2013, the first quarter after the bill was introduced.
Their campaign contributions also dramatically increased after Sen. Lautenberg introduced the bill.
In June 2013, the 10 chemical companies and organizations contributed $84,875 to members of the Senate at the time. The total was nearly 10 percent of the entire amount the companies and organizations contributed to senators during the entire 2014 election cycle.
*MapLight tracked campaign contributions and lobbying spending by the top 10 chemical companies and organizations that spent the most on lobbying in the third quarter of 2013 and lobbied about S.1009, the Chemical Safety Improvement Act. The companies include: 3M, American Chemistry Council, BASF, Bayer, Dow Chemical Company, Dupont, Eastman Chemical Company, Grocery Manufacturers Association, Johnson & Johnson, and Koch Industries.
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State Role Overseeing Chemical Safety Central Issue in TSCA Reform Hearing
Mar 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A bipartisan bill to overhaul the Toxic Substances Control Act would be better if it let states enforce federal chemical standards, witnesses told the Senate Environment and Public Works Committee March 18.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) also would be more health-protective if it let states regulate a chemical of concern until the Environmental Protection Agency makes a decision about whether the chemical's uses should be restricted, witnesses said.
The committee hearing focused on S. 697, which Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10 (47 DEN A-19, 3/11/15).
More than 450 environmental and health organizations, unions and nearly a dozen attorneys general have objected to the Udall-Vitter bill, raising concerns in particular about ways it could preempt some types of state chemical regulations.
Yet many individuals who are close to negotiations on S. 697 have told Bloomberg BNA that Udall and Vitter have made many concessions in the legislation to address concerns advocates raised about a previous iteration of the legislation: the Chemical Safety Improvement Act of 2013.
Udall: ‘Focus on Substance.’
“The challenge now is for this committee to ignore the rhetoric and focus on the substance,” Udall told the committee.
“There are still voices out there with concerns,” Udall said. “I hear them, and I want to engage with them constructively. But hear my concern as well. New Mexico and many other states have very little protection for our citizens.
“EPA estimates the cost of evaluating and regulating a chemical—from start to finish—is at least $2.5 million. It's a figure that many states cannot afford—especially with 80,000 chemicals in commerce and hundreds of new ones every year. We cannot leave the people of my state—and so many others—unprotected,” Udall said.
Sen. Tom Carper (D-Del.), who cosponsored S. 697 but simultaneously voiced reservations about ways it would constrain states, said Delaware, too, lacks the capacity to run a robust toxics regulation program.
He praised the ways Udall and Vitter have improved their bill compared with the original legislation from which it evolved. But more work is needed, Carper said.
With communication, collaboration and compromise, Carper said, Republicans and Democrats could reach consensus on a bill.
“I think we are making progress,” Carper said.
State-Federal Relationship
Regarding state and federal regulation of chemicals, S. 697 would:
• grandfather state chemical regulations enacted prior to Jan. 1, 2015;
• exempt existing and future regulations issued under California's Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986;
• allow states to regulate chemicals the EPA designates to be low priorities;
• allow states to legally challenge the EPA's designation of a chemical as a low priority if the state previously petitioned the agency to make the chemical a high priority;
• require the EPA—after it has designated a chemical to be a high priority—to scope out within six months the uses of the chemical, exposure scenarios and hazards the agency would analyze through its risk assessment;
• allow states to regulate a high-priority chemical if the state regulation addresses a use outside the scope of the EPA's risk assessment;
• preempt states from regulating high priority chemicals if the state's regulation would address a use within the scope of the EPA's assessment; and
• preclude any state from establishing or enforcing laws or regulations that would replicate or conflict with EPA regulations.
Combined State, Federal Enforcement
Many of the questions raised during the March 18 hearing centered around a provision of S. 697 that would bar states from enforcing federal chemical standards.
Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, didn't take a position on S. 697 or the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, which Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.) introduced March 12 and championed the day before the EPW hearing (52 DEN A-22, 3/18/15).
If the Senate were to take up S. 697, however, the administration would closely examine the bill's preemption provisions, Jones said.
Co-enforcement is an aspect of most, if not all, environmental statutes, Jones said.
Provided states enforce identical rules to those the EPA issues, co-enforcement allows “more cops on the beat,” he said.
Staff Distributes E-Mails on ‘Myths.'
During the hearing, EPW's Republican staff disseminated “myth versus fact” e-mails, including one addressing co-enforcement.
“Current TSCA does not give states power to enforce federal chemical regulations today,” the staff statement said.
“No federal safety program (like aircraft, automobile or pharmaceutical programs) gives states the ability to enforce the federal standard because all Americans using the same product face the same risks,” the statement continued.
“Fifty different enforcement programs would ultimately be nothing more than 50 different regulatory programs,” it said.
‘Death Zone.’
Another focus of Democratic questioning was a provision of S. 697 that would preclude states from regulating high-priority chemicals unless they obtain a waiver from the agency.
Sen. Sheldon Whitehouse (D-R.I.) called that gap a “death zone” during which the EPA wouldn't regulate a chemical nor could any state or local government.
Questioned by Whitehouse and Sen. Edward Markey (D-Mass.), five witnesses, including Richard Denison, a senior scientist with the Environmental Defense Fund, said revising S. 697 so that it would give states more authority over chemicals would enable the law to better protect public health and the environment.
Changes Supported, But Not at Cost of Reform
If, however, insisting on those changes causes bipartisan support for the bill to collapse, public health and the environment would suffer, Denison told Bloomberg BNA after the hearing.
It has taken more than a decade to get to the point on Capitol Hill where both Republicans and Democrats have compromised, enabling S. 697 to fix the biggest problems of TSCA, Denison testified. “The need to reform this law is urgent,” he said, voicing an opinion all six witnesses shared.
Lynn Goldman, dean of the Milken Institute School of Public Health at the George Washington University, joined Denison in testifying for the majority in support of the Udall-Vitter bill. Goldman served as assistant administrator for prevention, pesticides and toxic substances at the EPA during the Clinton administration.
She, too, agreed the bill would be better if states could co-enforce federal chemical standards and regulate chemicals until the EPA takes a final action by either deciding they are safe as used or restricting uses in some way.
Would Remove Frustrating Provisions
Pointing to the bill's merits, however, Goldman said S. 697 would eliminate key provisions of TSCA that have frustrated the agency's efforts to oversee chemical safety for decades.
She recalled testifying on TSCA's reauthorization in 1994 in a hearing before EPW's Subcommittee on Toxic Substances, Research, and Development.
“Everyone decided it was too complicated, and everyone walked away for nearly a generation,” Goldman said. “I want to remind you of the human cost of inaction.”
“Each of us has our own ideas about what a perfect TSCA would look like, but I don't want to be facing another Senate committee 20 years from now, testifying about a 60-year old law,” Goldman said. “Nor do I want to tell my daughter that she and her future children will not have a greater level of protection because we failed to pass a good, even if not perfect, law.
“The need for change is clear. We should not and cannot wait another generation before taking action,” Goldman said.
Manufactured Goods
Sen. James Inhofe (R-Okla.) mentioned one issue that wasn't discussed at length at the hearing. The EPA previously had flagged one concern it has with a portion of the bill that deals with manufactured goods, he said.
Jones said the issue involves the copious amount of analyses the agency would have to do before it could regulate the use of a chemical in manufactured goods.
Markey said S. 697 could require the EPA to go beyond analyzing every general form of a product, such as clothes, carpets and couches, before it could regulate a chemical's use in that product. The bill might require the agency to analyze every variation of a manufactured good, such as different types of clothes, carpets and couches, Markey said.
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EPA Eyes Senate TSCA Reform Bill Fixes But Questions State Preemption
Mar 18, 2015 | InsideEPA
By Bridget DiCosmo & Maria Hegstad
EPA toxics chief Jim Jones is detailing potential fixes to a bipartisan Senate Toxic Substances Control Act (TSCA) reform bill in order for the measure to win the agency's support such as clarifying its power to regulate “articles,” but Jones questioned language that opponents of the bill warn will broadly preempt state toxics programs.
At a March 18 Senate Environment & Public Works Committee (EPW) hearing on the bill, Jones said that while preemption was not one of the six issues identified by EPA in its TSCA reform principles floated early in the Obama administration, he is “confident preemption will be a critical element” as EPA reviews the new bill.
In response to questions from Sen. Cory Booker (D-NJ) on whether preemption would be a key issue EPA might consider when examining the bill, Jones said the administration is “looking at it very hard.”
Preemption is one of the areas Sen. Barbara Boxer (D-CA), ranking member on EPW, echoed by other committee Democrats, highlighted during the hearing as a “fatal flaw” of the bipartisan bill, S. 697, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act after the late Sen. Frank Lautenberg (D-NJ).
Lautenberg introduced a TSCA bill in 2013 with Sen. David Vitter (R-LA), but it stalled in committee largely due to preemption concerns raised by Boxer, who feared it would block state chemicals programs. Vitter then worked with Sen. Tom Udall (D-NM) worked to revise the legislation, introducing a new draft TSCA reform bill on March 10. In addition to Vitter and Udall, the bill has the support of eight Democrats and eight Republicans.
In response, Boxer and Sen. Edward Markey (D-MA) introduced a counter proposal March 12, with one co-sponsor, Sen. Bernie Sanders (I-VT). The bill does not allow any preemption of existing or future state toxics programs, and would sets a “safety standard” for EPA to review chemicals based on reasonable certainty of no harm, as opposed to the “unreasonable risk” standard in the Vitter-Udall bill, among other differences.
The hearing focused on the bipartisan measure S. 697 and marked the first time a top EPA official has made public comments on the merits -- and potential concerns -- with the latest bid to overhaul TSCA.
Jones during the hearing said that S. 697 would generally align with most of EPA's years-old principles for successful reform of the 1976 chemical safety law, and said it could improve the agency's ability to make timely decisions on chemicals, though EPA has not yet developed a formal position on the bill.
For example, in response to a question from Sen. Deb. Fischer (R-NE) on whether EPA would have the “bandwidth” to accomplish the chemical safety reviews in accordance with the time frames laid out in the bill, Jones said that the fee system that the bill would establish would give EPA sufficient resources to do so.
But Jones said in response to questions from Vitter that the agency has some concerns that language referring to regulating chemicals in articles -- which are completed products sold to consumers -- “may be a barrier to” the bill being consistent with the agency's TSCA reform principle from early in the administration that says, “EPA should have clear authority to take risk management actions when chemicals do not meet the safety standard.”
The Vitter-Udall bill states, “If the Administrator intends to prohibit or otherwise restrict an article on the basis of a chemical substance contained in that article, the Administrator shall have evidence of significant exposure to the chemical substance from such article.”
In response to a question from Markey on EPA’s ability to regulate flame retardants under current TSCA, Jones expressed some concerns, saying, “This refers to the articles discussion,” adding that the language could create a “fair amount of analytical burden” for EPA to assess chemicals already a component of a product.
Vitter said lawmakers were aware of EPA's concerns and believed they could come to an agreement on the issue.
TSCA Reform
Jones, speaking to Inside EPA after the hearing, said the agency would provide technical assistance or suggested language to revise the provision if asked.
The bill would also set for EPA to act on the new TSCA authority the legislation would create, such as requiring the agency to list at least 10 high-priority substances for safety assessment within one year of enactment. When Vitter asked Jones about the deadlines, the toxics chief said there is “some question with respect to the pace” reflecting concerns raised by Democrats that risk management decisions could take as long as 12 years under S. 697.
For example, in response to a question from Boxer, Jones acknowledged that the bill does not contain a deadline for EPA to implement a ban or other restriction on a chemical, and that the process could stretch “far longer” than the seven year time frame most agree would apply.
Jones' remarks reflect that EPA may be more likely to support the S. 697 bill than the previous Vitter-Lautenberg bill, S. 1009. During an April 29, 2014, House hearing, Jones said that legislation was enough out of alignment with the agency's 2009 principles that “if it were passed, the administration would probably have a problem with it.”
Among other things, Jones in 2014 outlined concerns that the legislation as currently drafted would require EPA to conduct complicated cost-benefit analysis before taking action to restrict a chemical the agency deems unsafe, a major problem with current law -- a consideration that the new S. 697 bill seeks to address. The new revisions reflect that EPA must promulgate a rule establishing restrictions necessary to ensure a substance meets the safety standard, regardless of cost, but names cost as a factor in EPA's decision on what type of rule to promulgate.
Jones did not specifically weigh in on the new language other than to say in response to a question from Sen. John Barrasso (R-WY) that cost benefit analysis is “very important for regulation,” but one of the difficulties under TSCA has been that benefits of chemical safety rules are often difficult to “monetize.”
In a March 18 letter to Boxer, five former senior environmental officials weighed in, including former General Counsels Scott Fulton, Roger Martella and Donald Elliott, former EPA waste chief Marianne Horinko, and former Justice Department environmental chief Ron Tenpas, refuting the senator's attacks on the bill.
Specifically, the former officials say the “amended safety standard will provide EPA with greater authority to address potentially risky chemical substances in commerce,” refuting remarks made in a March 16 letter from law professors saying the bill preserves the same “inadequate safety standard” in current TSCA.
At the hearing, Markey sought to address what he said would become a “regulatory black hole” if states are preempted from implementing regulations once EPA launches its safety assessment for a high priority chemical, asking witnesses on a second panel if the bill would be made stronger by removing that language.
Richard Denison, senior scientist with Environmental Defense Fund, answered that it would be stronger, if such a provision were to make it into law.
Preemption Concerns
Preemption, however, appears to continue to be a major point of contention with the bipartisan bill. Jones agreed with Boxer that there appear to be “some ambiguity” in the language that could potentially jeopardize existing regulation of chemical releases under state laws aimed at regulating air and water quality.
Democrats highlighted two major concerns with S. 697's preemption language: that it would restrict states from enacting identical chemical management rules, and that it would block existing state rules when EPA launches a safety assessment for a chemical it deems “high-priority” under the prioritization scheme that the bill would establish. Opponents say the language would block states' ability to be “co-enforcers” of the law and would leave a potential seven-year regulatory gap until EPA issues a final rule during which no chemical restrictions would apply.
In response to a question from Booker on whether states should be “co-enforcers” of toxics regulations Jones said that most environmental laws have a similar structure, and that he is “not aware it creates problems,” and contributes to having “more cops on the beat” to enforce statutory requirements.
Meanwhile, representatives of several state attorneys general (AGs) and state environmental agencies protested the preemption provisions in S. 697 at a press briefing with Boxer and Markey March 17. Several of the officials described themselves as a first line of protection against exposure to chemical exposures, and questioned why the bill removes them from that role.
The attorneys general of Iowa, Maine, Maryland, New York, Oregon and Washington sent a joint March 16 letter to Boxer and Senate EPW Chairman James Inhofe (R-OK) outlining their concerns with the preemption provisions of S. 697. They offered their assistance to craft a bill that “would improve federal regulation of toxic chemicals while preserving the traditional and critical role of states in protecting the health and welfare of their citizens and natural resources.”
The Massachusetts attorney general wrote Markey a similar letter March 12, joining the concerns that the California attorney general addressed to Boxer in a March 5 letter. “[T]he issue of most pressing concern regarding the preemption language in the bill is timing: state requirements would be displaced long before any federal ones take effect,” writes Massachusetts Attorney General Maura Healey.
Matthew Rodriquez, secretary of California's Environmental Protection Agency, wrote Boxer a March 17 letter providing his agency's analysis of S. 697, which he said “contains a series of preemption rules, exceptions to those rules, and exceptions to the exceptions, which contradict each other and potentially imperil state protections for clean air and water. … These conflicts would support the argument that state action is forbidden, even though certain sections clearly allow such action, causing confusion in states over what is allowed.”
Rodriquez argues that at a minimum, this confusion “would guarantee years of litigation by those intent on maximizing regulatory delay at the expense of the states' health-protective standards.”
Rodriquez's critique extends beyond preemption to also address the bill's safety standard and “underfunding” EPA to assess and manage industrial chemicals while setting new requirements and deadlines. Boxer several times during the hearing referenced letters from advocates, the state AGs, and others indicating that the bill would be “worse than current law.” Still, she said the hearing identified several “areas for consensus” and that the bill could be improved upon.
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Democrats’ Dispute Turns Toxic Over Chemical Safety
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The intra-party dispute over a toxic chemicals bill intensified on Tuesday, with Senate Democrats trading barbs over whether the effort to update the 40-year-old law would undercut states’ ability to police dangerous substances.
Amid pleas from the late Sen. Frank Lautenberg’s widow to pass the bipartisan compromise that would revise the 1976 Toxic Substances Control Act, the lead Democrat on the bill called on his party colleagues to avoid the personal attacks that have erupted in the debate.
But staunch opposition from a group of liberal senators to the bill — which backers say is a compromise measure that has the best chance to fix the dated and flawed 1976 toxics law — may mean that new changes are needed to win the broad support on Capitol Hill and at the White House that its authors hope to garner.
At a hearing of Environment and Public Works Committee on Wednesday, Sen. Cory Booker (D-N.J.) lined up with that opposition, saying he had “multiple concerns” with the bill pushed by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), particularly that the state preemption language “is a serious problem and defect in this bill.”
Under questioning from Booker, who won Lautenberg’s seat after his death, EPA chemical safety chief James Jones agreed that the preemption issue was a significant element of the bill. But Jones said he knew of no cases where a state’s co-enforcement with EPA — a component of other major environmental laws — created a problem.
EPA has not taken a formal position on the bill or on a competing measure from EPW ranking member Barbara Boxer and Sens. Ed Markey (D-Mass.) and Bernie Sanders (I-Vt.).
Several Democrats also noted the bill doesn’t include deadlines for EPA to actually regulate chemicals, and that states would be prohibited during that period from crafting their on rules — an omission that Sen. Sheldon Whitehouse (D-R.I.) said would create a “death zone” of non-regulation.
Under Whitehouse’s questioning, Jones said there were no other apparent environmental laws where EPA regulations preempt state regulations before federal regulations are actually promulgated.
“This would be a novelty,” Whitehouse said. He and Sanders both noted that Republican efforts to lessen EPA funding could further weaken federal chemical enforcement and that that should be a warning to blocking state enforcement.
Several Democrats — including Udall, who is not a member of the panel, but gave a statement at the hearing — said they would be willing to make changes to improve the bill and cited broad suggestions by The New York Times editorial board.
“They are good suggestions [that] could help build more bipartisan support,” Udall said.
But he also emphasized significant changes that have been made “on the public health side of the equation” since Lautenberg and Vitter first unveiled their bipartisan compromise to the law in 2013, just two weeks before the New Jersey Democrat died.
Udall and Vitter, who named their bill after Frank Lautenberg, joined Bonnie Lautenberg in urging skeptics to back the measure as the best chance in decades — and possibly for decades to come — to update a TSCA law that all sides say is inadequate.
Lautenberg opened the hearing by imploring senators to compromise on what she said was an even more important legacy to her late husband than his success in banning smoking on airplanes.
“This bill on chemical safety meant everything to him,” she said. “He wanted chemical safety to be his final, enduring legacy.”
In his pitch to the committee, Udall characterized the bill as a delicate deal that he had worked out with Vitter, and he hit back at suggestions that he is too cozy with the chemical industry.
“Criticism of the substance of this legislation is legitimate from both sides, it is a compromise product,” Udall said in a statement at the hearing. After a lengthy pause he added, “But I urge — I urge — everyone participating in this hearing today to reject attacks on anyone’s integrity, character and motivations.”
Udall didn’t single out any senators, but Boxer has contended that the chemical industry has been the driving force behind the TSCA bill, and a recent New York Times article argued that Udall’s position has been affected by campaign donations and TV ads sponsored by the chemical industry.
“[Those allegations] did not concern me because they are absurd and unfounded,” Udall said. “But they do a serious disservice to the legislative process.”
Boxer — after Udall had left the hearing — described the New Mexico Democrat as a friend and referenced his comments about not making the debate personal.
“And he’s right on that, it has nothing to do with personalities,” Boxer said. “It has to do with children of the United States of America, it has to do with the families. … So I’m not going to stop saying what I think. I’m going to escalate saying what I think.”
Boxer said there were more than 400 groups that oppose the Udall and Vitter bill, as well as eight state attorneys general.
“I’ve never seen in all the years I’ve been here such opposition to legislation,” Boxer said
Those AGs who oppose the bill — from states including Maryland, Massachusetts, New York, California and Oregon that are home states of the committee’s Democratic panelists — have complained about the preemption language.
On the other side, though, are six Republican AGs representing Alabama, Georgia, Michigan, Louisiana, South Carolina and Utah who support the bill for providing a single federal framework and increasing regulatory certainty. The Democratic AG from West Virginia is also a supporter.
The party lines for and against the bill became more blurry Wednesday when Sen. Gary Peters (D-Mich.) — the darling of green groups and one of their biggest success stories in 2014 — joined fellow Michigan Democrat Debbie Stabenow as a cosponsor of the Udall and Vitter plan. With the addition of Sen. Mike Rounds (R-S.D.) on Wednesday, 10 senators in each party are now cosponsoring the Udall and Vitter bill so far.
Boxer’s rival bill has no Republican cosponsors, but is supported by many environmental and public health groups. Environmental Defense Fund remains the sole environmental organization supporting Udall and Vitter.
Backers of Udall and Vitter’s bill have said the bill pushed by Boxer, Markey and Sanders had no chance to succeed, and could end up derailing the entire discussion.
“They are letting the perfect be the enemy of the good, which is tragic because if they get their way then there will be no reform … for many more decades,” Lautenberg told the panel. “This bill is not only the legacy of Frank Lautenberg, it is about the legacies of each member of this committee,” she added.
EPA’s Jones, at the prompting of Vitter, said the Udall-Vitter bill was largely consistent with the TSCA reform principles the agency has laid out, including basing safety standards on health and environmental risk, better enabling the collection of data from chemical manufacturers, better transparency and public access and providing EPA with a sustained source of funding to conduct safety assessments and regulation.
One of the bill’s cosponsors, Sen. Tom Carper (D-Del.), reiterated that the bipartisan measure should be changed to address the controversial preemption of state authority and state enforcement, concerns he laid out in a recent letter to Udall, Vitter and EPW Chairman Sen. Jim Inhofe.
“What I’m hoping for is not just 60 votes, not just 67 votes, but I wish to make a strong statement, 75 votes, maybe even more,” Carper told POLITICO after the hearing.
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House Passes Bill to Ban EPA 'Secret Science'
Mar 18, 2015 | The Hill - Floor Action
By Timothy Cama and Cristina Marcos
The House passed a bill Wednesday that aims to increase public scrutiny of the scientific research behind Environmental Protection Agency (EPA) regulations.
Passed 241-175, the GOP bill would prohibit the EPA from using so-called “secret science” to justify its rules.
Instead, the EPA would have to make public the details of all the research upon which its rules rely. If a rule’s science isn’t made public, the EPA would not be allowed to write the rule.
The legislation is sponsored by Rep. Lamar Smith (R-Texas), House Science, Space and Technology Committee chairman. It answers a common GOP claim that the EPA uses “secret science” that prevents the public and the agency’s opponents from criticizing research.
At a Tuesday hearing on the EPA’s proposal to tighten ozone standards, Smith said the rulemaking provides a typical example of why his bill is necessary.
“We should all be concerned about the process the EPA used to reach their conclusions,” Smith said. “During earlier stages of this rulemaking, EPA relied on studies with data that was not publicly available. This raises a lot of suspicions.”
Rep. Jim Bridenstine (R-Okla.) compared requiring the EPA to release its science to his young children having to show their work on assignments.
"Is it too much to ask the EPA to follow the same guidelines I give my children in elementary school? Show your work," Bridenstine said.
But Democrats argue that the bill would force the EPA to release confidential personal information about the participants in scientific research.
"What my Republican colleagues are calling secrets [is] actually confidential, personal health information from research study participants," said Rep. Eddie Bernice Johnson (D-Texas), the top Democrat on the House Science, Space and Technology Committee. "Disclosure of this kind of information would be a major breach of faith with hundreds of thousands of research participants who volunteered to enter these types of public health studies."
The House rejected, 184-231, an amendment offered by Rep. Patrick Kennedy (D-Mass.) that would allow the EPA to rely upon peer-reviewed scientific publications even if they are based on data prohibited from public disclosure.
"The goal of this amendment is to make sure they are able to rely on the most sound, reliable information available," Kennedy said.
But Smith said the proposal would still limit public disclosure of scientific data.
"Peer review alone will not give the American people all the facts," Smith said.
The legislation passed a day after the House approved another bill that would restrict how the EPA uses scientific research for its regulations.
That bill would reform the makeup and activities of the EPA’s Science Advisory Board, through new quotas on its members, stricter conflict-of-interest standards and a ban on lobbyists.
The House passed both bills last year, but the Senate did not take them up.
The White House has threatened to veto both EPA science bills, saying they would put unworkable new restrictions on the agency’s ability to fulfill its duty to protect the environment and public health through regulations.
The "secret science" bill, the White House said, would “impose arbitrary, unnecessary, and expensive requirements” upon the EPA.
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Food Producers Win in Prop 65 Case; No Warning Needed for Lead in Baby Food
Mar 19, 2015 | BNA Daily Environment Report
By Martina Barash
A California public interest group has lost its bid to reverse a trial-court ruling in favor of 32 food manufacturers, distributors and retailers over the presence of lead in food for babies and toddlers (Envtl. Law Found. v. Beech-Nut Nutrition Corp., 2015 BL 72035, Cal. Ct. App., No. A139821, 3/17/15).
Expert scientific evidence used appropriate methodology and sufficiently supported a trial judge's decision that the companies didn't violate California's Proposition 65 when they failed to warn consumers of lead in baby food, fruit juice and packaged fruit, the California Court of Appeal, First Appellate District, ruled March 17.
A trial judge found, after a 10-day bench trial in 2013 with extensive expert testimony, that low levels of lead in the products don't produce exposures that trigger a requirement for warnings under the law.
The defense experts testified that the companies were entitled to a “safe harbor” exemption from the requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986, known as Proposition 65. That exemption applies when exposure to a chemical is 1,000 times lower than the highest level at which there's no observable reproductive effect.
The plaintiff, the Oakland, Calif.-based Environmental Law Foundation, challenged the methodology of the defendants' experts on appeal, particularly that of Dr. Barbara Petersen, a nutritional biochemist.
Evidence Supports Conclusion
ELF argued the trial court shouldn't have allowed Petersen to average test results from multiple lots of a product, and that there was an insufficient basis for this methodology. But the appeals court disagreed.
ELF also said the trial court shouldn't have interpreted the relevant regulations “so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed,” the appeals court said.
But “all of defendants' toxicologist experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. Thus, absent an underlying legal or scientific error, substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time,” the court said.
Lead, both naturally occurring and added by human activity, exists in the environment and can be taken in by plants through the soil, according to the opinion.
Kamala Harris, the attorney general of California, submitted an amicus brief supporting the ELF lawsuit, particularly its average-over-time argument. The case also attracted friend-of-the court briefs from environmental groups and associations representing food producers and processors and grocers.
Other Litigation Pending
Despite this latest ruling, litigation over lead in food is still pending in California as another group that submitted an amicus brief supporting ELF, the Mateel Environmental Justice Foundation, filed a “backup suit” recently.
The lawsuit, filed in a California trial court Jan. 13, seeks to force the state to rescind its 0.5 microgram/day safe harbor for lead, which was set in 1992. The group alleges there is no safe harbor for lead (Mateel Envtl. Justice Found. v. Calif. Office of Envtl. Health Hazard Assessment, Cal. Super. Ct., No. RG15754547, 1/13/15).
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Some Biodegradable Plastics Don’t Live Up To Their Claims
Mar 18, 2015 | Chemical & Engineering News
By Deirdre Lockwood
From bread bags to beverage bottles, many plastics now contain additives designed to make the materials biodegradable. But a new study shows that plastics made with such additives do not biodegrade in the environment significantly faster than those without the compounds (Environ. Sci. Technol. 2015, DOI: 10.1021/es504258u).
Plastics, such as the low-density polyethylene (LDPE) used to make bags and the polyethylene terephthalate (PET) found in water bottles, can remain intact for years in a landfill. So some plastics manufacturers include additives designed to help the long polymers in the plastics disintegrate faster. Transition-metal salts called oxo-degradable additives catalyze the oxidation of the polymer chains in the presence of oxygen and ultraviolet light or heat. Other types of additives claim to increase biodegradation through different mechanisms.
Some manufacturers assert that once polymer chains are fragmented in this way, microbes can then eat them. But previous studies have cast doubt on this claim: For example, many oxo-degradable plastics do not pass a common composting certification test known as ASTM-D6400, which requires 60% of the material to be converted into carbon dioxide in 180 days. Researchers Susan Selke and Rafael Auras of the School of Packaging at Michigan State University wanted to design a rigorous field study to determine whether the materials perform as promised.
So they and their colleagues prepared films of an LDPE blend used to make bread, supermarket and trash bags, and PET sheets, like those used to make plastic water bottles, with three different additives supplied by their manufacturers. These were an oxo-degradable additive made by Symphony; a non-oxo-degradable one made by Ecologic; and Wells Plastics’ Reverte, which was originally described by the manufacturer as a combination of the two types of additives. The researchers exposed the oxo-degradable plastics to UV light at 0.80 W/m2 for about six days, the equivalent of about two months of outdoor exposure in Miami. They then treated all of the samples to mimic disposal of such plastics in a compost pile, a landfill, and soil.
By measuring the carbon dioxide and methane that evolved from the plastics in closed containers simulating composting and landfilling, the researchers could determine whether microbes had digested the materials. After about six months of composting and a year and a half of landfill-like conditions, samples that included plastics with additives did not produce significantly more methane and CO2 than the samples of plastics without them. At the end of the experiment, the team checked that microbes in the landfill simulation were still alive: When the researchers fed the microbes starch, the microbes produced gases as expected. After three years of soil burial, the plastic samples with additives did not show any greater physical degradation than samples without them.
Auras says, “We saw no evidence that these additives promote significant biodegradation in these tested environments.”
Both Wells Plastics and Symphony issued extensive statements in response to the study. Wells Plastics said Reverte is not a mixture but only an oxo-degradable additive. Both companies contend that the study conditions were not an appropriate test of how oxo-degradable plastics are meant to be disposed of.
David J. Tonjes, an expert in solid-waste management at Stony Brook University, SUNY, says the study is well designed, subjecting plastics made with commercially available additives to a sophisticated test of biodegradation with careful controls. “It underscores that plastics with these additives don’t degrade under timescales we’d consider reasonable,” he says.
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(ACC Mentioned) Legality of EPA Ozone Proposal Questioned By Industry, Environmental Organizations
Mar 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Industry and environmental organizations both used the public comment period on the Environmental Protection Agency proposal to revise national ozone standards to question the legality of the agency's identified range for the primary, health-based standard.
A coalition of 30 industry groups, in joint comments submitted March 17, argued that the EPA failed to provide a reasoned explanation for proposing to revise the current primary ozone standard of 75 parts per billion and did not give reasonable consideration to various contextual factors, including background ozone concentrations and potential adverse economic and energy effects, that could affect EPA Administrator Gina McCarthy's final policy decision on where to set the ozone standards.
The U.S. Chamber of Commerce, National Association of Manufacturers, American Petroleum Institute and other industry groups urged the EPA to retain the current 75 ppb standard, set in 2008, rather than follow through on the proposal to set the standard somewhere in the range of 65 ppb to 70 ppb. A more stringent standard could force facilities in various industrial sectors to install additional pollution controls to reduce emissions of volatile organic compounds and nitrogen oxides, which are precursors to the formation of ground-level ozone.
However, the Sierra Club, Natural Resources Defense Council and other environmental and public health groups said in their joint comments that a decision to set the primary ozone standard above 60 ppb cannot be justified by the record. The groups cited several legal deficiencies in the EPA proposal, including what they classified as an arbitrary decision to focus on newer studies while discounting other relevant evidence.
The EPA in November proposed (RIN 2060-AP38) to revise the current primary and secondary national ambient air quality standards for ground-level ozone to somewhere in the range of 65 ppb to 70 ppb, which the agency estimated could cost as much as $16.6 billion annually in 2025 and provide up to $38 billion in annual benefits from reduced incidents of asthma and other adverse health effects. While the agency also solicited comments on retaining the current standard of 75 ppb and on a standard as low as 60 ppb, McCarthy told reporters that she thought the proposed range is where the EPA should focus its efforts (229 DEN A-1, 11/28/14).
The comment period on the ozone proposal closed on March 17. The agency is under a court-ordered deadline of Oct. 1 to finalize its decision on the ozone standards.
Agency Justification Questioned
The EPA's justification for proposing a range of 65 ppb to 70 ppb was questioned by both sides.
The environmental and public health groups said there is extensive scientific data that “unequivocally documents” the need for a 60 ppb primary ozone standard. The EPA decision to dismiss significant data since 2006 and an assessment by the Clean Air Scientific Advisory Committee, which included 60 ppb in the recommended range that the agency should consider, is arbitrary and unlawful, according to the environmental and public health organizations.
“Simply put, EPA's actions cannot be justified on the record before it, particularly why it has veered from years of unanimous recommendations by CASAC to include 60 ppb in the range under consideration.”
The Clean Air Act requires the EPA to consider the advice of the Clean Air Scientific Advisory Committee in setting national air quality standards and to rationally explain any significant departure from those recommendations. EPA Administrator McCarthy said there is uncertainty with the data supporting a 60 ppb standard, but the environmental coalition said invoking uncertainty is not enough to justify disagreeing with the advisory committee's recommendation.
The industry coalition disagreed with that argument, saying the views of the advisory committee should “have little weight” on the final policy judgment that will be made by McCarthy.
If the EPA insists on finalizing a primary ozone standard within the proposed range, the agency should finalize a 65 ppb standard because that would be closest to the level that would adequately protect public health, according to the environmental and public health coalition.
Exposure Assumptions Targeted
The coalition of environmental and public health groups also said the EPA illegally and arbitrarily discounted numerous epidemiological studies that show strong associations between serious health effects and exposure to ozone levels well below 70 ppb. The agency also rejected consideration of a 60 ppb standard using an exposure risk assessment that concluded there would be relatively few exposures of concern at higher ozone concentrations because at-risk populations will stay indoors, those groups said.
“It would be unlawful for EPA to set the standard at a level that is contingent upon people spending most of their time indoors,” the environmental and public health groups said.
Several other organizations filed comments in support of a standard of 60 ppb.
Seventy-nine organizations, including the NAACP, Greenpeace and the League of Women Voters, cited thousands of new studies that have been published since the EPA's last full review of the ozone standards. Those studies better document health effects at exposure levels down to 60 ppb, providing “overwhelming” support for a 60 ppb standard, the organizations said.
The American Lung Association, American Heart Association, American Thoracic Society and other national medical and health organizations also filed comments in support of a 60 ppb standard, saying the EPA cannot justify retention of the 2008 ozone standards based on health evidence.
Industry Push for Retained Standard
The joint industry comments argued that the EPA ozone proposal is arbitrary, capricious and unlawful for several reasons, including the EPA's failure to provide a reasoned explanation for changing its interpretation of the scientific evidence used to support the proposal.
The industry comments pointed to the EPA proposal, which stated that the current body of evidence “confirms the conclusions reached in the last review” on ozone-induced effects. Therefore, the EPA must provide a reasoned explanation for its change in judgment that levels of risk judged to be acceptable in 2008 are now no longer judged to be acceptable by the EPA, the industry groups said.
The EPA also erred by failing to properly consider that setting a more stringent ozone standard would be infeasible to achieve in some areas due to background ozone levels, the industry groups said. Several state environmental agencies commented that compliance with a more stringent standard would be difficult due to background ozone, which is the level of ozone in a given area that would exist absent any man-made emissions from inside the U.S. (52 DEN A-19, 3/18/15).
The industry groups argued that the EPA's proposed solution to provide regulatory relief for areas that have background ozone levels approaching the level of the final ozone standard would be ineffective. The proposed solutions, including exceptional event exclusions, provisions for international pollution transport and the possibility of treating some areas as rural transport areas, could provide “limited relief” for exceedances resulting from background ozone, but have not been effectively used by the EPA in the past, the industry groups said.
Several environmental groups based in the Western U.S., including the Wyoming Outdoor Council and the Western Environmental Law Center, said in comments that those Clean Air Act policies can ensure that states attain healthy air quality in a way that considers infrequent instances where background ozone concentrations could contribute to violations of the ozone standard. Those groups recommended that the EPA set the primary ozone standard at 60 ppb.
Adverse Impacts Review Requested
The coalition of industry groups acknowledged in their comments that the U.S. Supreme Court has ruled that the Clean Air Act prohibits the EPA from considering the cost of compliance when setting national ambient air quality standards (Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 51 ERC 2089 (U.S. 2001); 40 DEN AA-1, 2/28/01).
However, the industry groups said the Whitman v. Am. Trucking Ass'ns decision did not absolve EPA from considering all adverse effects of setting a more stringent standard, including the likely adverse effects on the economy of a more stringent standard.
The American Chemistry Council, which signed onto the joint industry comments, said in individual comments that a more stringent ozone standard could impede manufacturing growth in many areas of the country because more areas would be designated as being in nonattainment, a designation that triggers additional pollution control requirements and more stringent permitting requirements under the EPA new source review program. Retaining the current 75 ppb standard is necessary to protect more than $138 billion in new and expanded facilities planned by the U.S. chemistry industry, the ACC said.
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North Carolina Governor Signs Bill Canceling Mandate for Rule on Drilling Toxic Emissions
Mar 19, 2015 | BNA Daily Environment Report
By Jeff Day
North Carolina Gov. Pat McCrory (R) signed legislation that eliminates a state code provision requiring regulators to establish toxic air emissions limits for oil and natural gas drilling operations.
The bill (H.B. 157; Session Law 2015-1) stipulates the state Environmental Management Commission need not regulate toxic air emissions from oil and natural drilling operations unless the commission determines that general state and federal air toxics regulations provide inadequate environmental protection.
A North Carolina regulation allowing and regulating hydraulic fracturing for oil and gas took effect March 17 (51 DEN A-11, 3/17/15).
Solid Waste Law Modified
H.B. 157, signed into law March 16, also tightens requirements for recycled products made from solid waste.
Under current law, if solid waste is converted into “recovered material,” it is not subject to solid waste regulations.
The revised statute requires that companies that convert solid waste into recovered materials ensure that the materials and by-products of production don't harm the environment or public health.
However, the legislation removes from the definition of solid waste steel slag produced by arc furnace steelmaking processes, as long as the slag is sold and recycled.
North Carolina-based Nucor Corp. is a major producer of steel made from recycled steel using an arc furnace steelmaking process.
H.B. 157 also allows the Environmental Management Commission to require solid waste permits for the transfer of construction and demolition debris to solid waste management facilities.
The legislation took effect when McCrory signed it.
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Oil Producers Face Skeptical Congress In Drive to End Crude Export Ban
Mar 19, 2015 | BNA Daily Environment Report
By Jim Snyder and Brian Wingfield
Coming into this year, it seemed that the time was right to overturn a ban on exporting U.S. crude oil: Republicans controlled Congress, production was nearing an all-time high and gasoline was falling toward $2 a gallon.
Despite a lobbying push by drillers, and steep job losses in the oil fields, there's been no significant effort in Congress to lift the 40-year-old ban. Even the Senate's top advocate for the idea hasn't proposed legislation.
“I have taken a pretty methodical approach,” said Senator Lisa Murkowski, a Republican from oil-rich Alaska and newly seated chairman of the Senate Energy and Natural Resources Committee. “We're all very busy here.”
Murkowski will convene a hearing on the topic March 19 though she said a bill to repeal the ban, in place since the Arab oil embargo four decades ago, remains a work in progress. Her House counterpart, Rep. Fred Upton (R-Mich.), said he also plans to take a deliberative approach.
The reason for the go-slow approach is wariness among lawmakers that they'd be blamed if gasoline prices climb after the ban is lifted. And the oil industry itself is split, with some refiners, who benefit from low prices, opposed to lifting the ban. Oil produced domestically is selling for about $9 less than the global benchmark.
North Dakota
Senator John Hoeven, a North Dakota Republican and member of the Senate energy panel, said lawmakers still need to convince voters that allowing exports won't cause them more pain at the pump.
“We need the public with us,” Hoeven, whose state is the second-largest U.S. oil producer behind Texas, said in a brief interview on Capitol Hill. “We're making progress.”
A price plunge has sparked consolidations, layoffs and spending cuts. The U.S. oil-rig count, a measure of drilling activity, is about 54 percent below its peak of 1,609 in October, and the fewest since March 2011, according to Baker Hughes Inc.
ConocoPhillips said March 18 that it would cut 200 jobs in Canada, about 7 percent of its local workforce. Continental Resources Inc. in December said it would slash 2015 spending by 41 percent. Chevron Corp. plans to curb new investment for the next two years and increase asset sales by 50 percent, Chief Executive Officer John Watson said March 10.
Globally, oil-related job losses have reached more than 100,000, according to staffing firm Swift Worldwide Resources.
White House
Chief executives from 11 companies, including Marathon Oil Corp., Chesapeake Energy Corp. and Occidental Petroleum Corp. that are part of Producers for American Crude Oil Exports flew to Washington the week of March 9 to lobby the White House and lawmakers, meeting with the staffs of both Republicans and Democrats.
Collectively, the 16 members of PACE spent more than $27 million to lobby Congress and the administration in 2014.
“I think people are getting more comfortable with the idea, but we are still a ways away from being ready to vote,” said Michael McKenna, an energy lobbyist who is close to Republican leaders in Congress.
McKenna said it would probably be at least two years, or after the presidential race in 2016, before a vote is held to end the ban.
Refined Products
While raw crude is restricted from overseas sales, refined products like gasoline, diesel and jet fuel aren't. In fact, exports of finished petroleum products in December reached 96.4 million barrels, just shy of the monthly record set in December 2013, according to the U.S. Energy Information Administration.
“Clearly the other side is ramping up their game this year,” said Jay Hauck, the executive director for Consumers and Refiners United for Domestic Energy, or Crude, a group of four refiners who oppose lifting the export ban.
Low oil prices may hurt oil companies but they're “beneficial to a broad spectrum of consumers and businesses,” Hauck said.
The fact that some members—including Representative Joe Barton of Texas and Senator Tom Cotton of Arkansas, both Republicans—are openly supportive of lifting the export restrictions is a shift in Washington, where energy policy has long been driven by a stated desire to reduce U.S. dependence on foreign oil.
Oil Fracking
Growing domestic production that is being driven by technological advances like hydraulic fracturing is changing the equation. Lobbyists for oil producers say the ban is a relic of the past that threatens a U.S. economic success story by discouraging production.
“Policies that were enacted during a period of perceived energy scarcity need to be modernized to reflect advancements in technology that have led to an era marked by domestic crude oil abundance,” George Baker, PACE's executive director, said in a statement.
Oil companies point to a number of studies that have found allowing oil exports won't raise prices at the pump. A Columbia University study released in January, for example, said gas prices could fall as much as 12 cents a gallon with exports because oil companies would have more incentive to drill.
The Senate Energy and Natural Resources Committee's hearing March 19 will be at least the second the panel has held on the topic in a year, since the oil industry began lobbying for a repeal in earnest.
Manchin Undecided
Two members of the panel, Sen. Joe Manchin, a West Virginia Democrat who often sides with Republicans on energy issues, and Sen. Cory Gardner, a Colorado Republican, said they were still undecided on the issue.
Gardner said it may make sense to sense to send some of the light sweet crude produced from shale rock formations overseas, because U.S. refiners along the Gulf Coast can better handle heavier crudes.
Refining capacity “is not a bottleneck to producing and using more very light U.S. crude oil over the next few years,” according to a study released March 18 by the American Fuel and Petrochemical Manufacturers, a Washington-based lobbying group that represents oil refiners.
While lawmakers say they are taking a deliberative approach to the issue, the fall in oil prices is adding urgency to the industry's lobbying push.
Robert Dillon, a spokesman for Murkowski, said the senator believes President Barack Obama can lift the ban without new legislation. That would be “the swiftest and easiest way to achieve the economic benefits of increased energy trade,” Dillon said in a statement.
Eased Restrictions
The Obama administration has eased some of the export restrictions, allowing a slightly processed form of condensate, a type of ultra light oil that's a gas underground, to be exported.
Producers say the step doesn't solve the problem of a growing glut of U.S. oil.
Senior administration officials have said more sweeping policy changes aren't being considered, which leaves Congress to act.
Environmental groups, a significant Democratic constituency, oppose ending the ban because it would encourage more use of fossil fuels, which releases greenhouse gases when burned.
“Relaxing oil restrictions or oil regulation in the context of our climate crisis, which is growing day by day, is moving in the wrong direction,” David Turnbull, campaigns director for Oil Change International, a Washington-based clean-energy advocate, said in a phone interview.
Easing the export restrictions “should be off the table,” he said.
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Refiners Hit Back at Need For Oil Exports
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
The main lobbying group for oil refiners released a study Wednesday hitting back at a top argument in favor of oil exports.
The survey, completed by a consulting firm for American Fuel & Petrochemical Manufacturers (AFMP), found that refineries have more than enough capacity to handle the increasing amount of light oil coming thanks to the domestic oil production boom.
Oil drillers have long argued that refineries were built to handle imported heavy oil, not the light oil that is increasingly being produced.
“With the results of today’s survey, we know without a doubt that our refiners are ready and able to process the increasing U.S. supply of light sweet crude,” AFPM President Charles Drevna said in a statement.
“The domestic energy renaissance is boosting our economy and benefitting our national security, and our refining industry — the world’s largest and most advanced — which is fully capable of handling this production growth over the next few years.”
But AFPM did not present its survey as a rebuttal to arguments in favor of oil exports. The group has said it does not oppose lifting the 40-year-old ban on exporting crude, but it would prefer that policymakers look at other ways to deal with the production boom first.
Consumers and Refiners United for Domestic Energy, an ad-hoc group of independent refiners, says that oil exports would increase oil prices domestically, rippling throughout energy markets, eventually to consumers.
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Growing U.S. Oil Export Debate Has Now Spread to Geopolitics
Mar 19, 2015 | Reuters
By Valerie Volcovici
Lifting the longstanding ban on U.S. crude oil exports would boost the country's economy and enhance its global leadership, a former senior Obama administration official will tell senators on Thursday, introducing a strategic dimension to the growing debate over selling American oil abroad.
In testimony submitted ahead of a Senate energy committee hearing on U.S. crude export policy, the Pentagon's former undersecretary of defense for policy, Michele Flournoy, argues "policymakers in the United States should embrace these various benefits to our allies and ourselves and liberalize our crude export rules.
"Market conditions merit such a step and security dividends will not be fully realized without it," said Flournoy, co-founder of the Center for a New American Security.
A host of economic and geopolitical factors, from plummeting oil prices, near-capacity storage facilities and sanctions against Iran and Russia, are forcing both sides of the debate to address strategic questions.
"Members of Congress are starting to focus on this issue in a big way," said George Baker, executive director of Producers for American Crude Exports - a group representing independent companies demanding an end to the export ban.
He said the possibility of using oil exports to address policy on Iran or Russia is now invoked in his discussions on Capitol Hill or with the Obama administration.
"The notion of selling oil into the international market comes up frequently," Baker said.
On the other hand, oil refiners keen to prevent producers from sending crude overseas counter that market realities limit the strategic benefits of exports.
"The case that the U.S. can enhance its geopolitical stance is incredibly overstated," said Jay Hauck, executive director of Consumers and Refiners United for Domestic Energy, a lobby group for east coast and Texas refiners.
CRUDE argues that, instead of bolstering America's global standing, they expect most U.S. crude oil to be exported to China, rather than European allies.
"I think we have consumers on our side and a lot of business sectors who have benefited from lower oil prices," he said. "We keep reminding Congress of that."
Most observers see the push for changes to the decades-old ban as a long game, with Congress continuing to debate the issue in hearings and lawmakers floating bills to test the appetite for change.
The ban on unprocessed crude was introduced following the 1973 oil shock, although U.S. laws currently allow exports of refined products such as gasoline and diesel.
Some argue that strategic factors should not override other concerns.
The American Fuel & Petrochemical Manufacturers, a trade group that supports lifting the ban, said "a decision should not be made in a vacuum," but as part broader reform of energy and shipping policies.
Some major oil companies want Congress or the administration to act on exports immediately.
"We've got to gain some traction this year. Certainly as we go into an election year, it becomes harder," said Ryan Lance, chief executive of ConocoPhillips, in Washington last week.
Lance will testify at Thursday's hearing.
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Feds Sell Nearly 1 Million Acres for Gulf Offshore Drilling
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
Federal officials brought in $539 million in high bids Wednesday for the rights to drill for oil and natural gas in almost 1 million acres in the Gulf of Mexico.
The auction in New Orleans resulted in leases of 169 drilling tracts from 42 companies, the seventh offshore oil and gas auction under the Obama administration’s 2012-2017 offshore drilling plan.
Abigal Hopper, director of the Interior Department’s Bureau of Ocean Energy Management (BOEM), which oversaw the auction, said the sale shows strong interest in offshore drilling despite the six-year low in oil prices worldwide.
“As one the most productive basins in the world, the Gulf of Mexico continues to be the keystone of the nation’s offshore oil and gas resources,” Hopper said in a statement.
“The recent drop in oil prices and continued low natural gas prices obviously affect industry’s short-term investment decisions, but the Gulf’s long-term value to the nation remains high,” she said.
Nonetheless, the 195 bids submitted were the lowest from a single sale since 1986.
In total, the auction offered 41.2 million acres of drilling rights, located three to 230 nautical miles from the shores of Louisiana, Mississippi and Alabama.
The areas leased could yield up to 890 barrels of oil and 3.9 trillion cubic feet of natural gas, BOEM said.
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Third Circuit Says Doctor Lacks Standing To Challenge State's Fracking ‘Gag' Rule
Mar 19, 2015 | BNA Daily Environment Report
By Mary-Anne Pazanowski
A federal appeals court agreed with a lower court that a Pennsylvania doctor wasn't injured by a state law that limits doctors' access to information about chemicals used in hydraulic fracturing, or fracking (Rodriguez v. Sec'y of Pa. Dep't of Envtl. Prot. of Pa., 2015 BL 70189, 3d Cir., No. 14-3467, 3/16/15).
The U.S. Court of Appeals for the Third Circuit, in an unpublished decision March 16, affirmed the dismissal of Dr. Alfonso Rodriguez's lawsuit against the Pennsylvania Department of Environmental Protection, saying he failed to show he had standing to pursue the litigation.
To show standing under Article III of the U.S. Constitution, a litigant must demonstrate he suffered an injury in fact, which the court defined as “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Rodriguez is a nephrologist specializing in kidney disease in an area of Pennsylvania where fracking occurs. He said that direct or indirect contact with fracking fluids may cause negative medical conditions and that he is unable to render the proper treatment without knowing to which environmental toxins his patients have been exposed.
The physician challenged the constitutionality of Pennsylvania Act 13 of 2012. Section 3222.1 of the act provides two mechanisms for health care professionals to learn proprietary information about chemicals used in fracking.
In an emergency, a health professional may obtain the information if he or she verbally agrees to keep the information confidential and to use it only for the specific medical injury presented.
In a nonemergency situation, a doctor may obtain the information as long as he or she executes a confidentiality agreement and provides a written statement showing the information is needed for treatment or diagnostic purposes.
Called Law ‘Medical Gag Rule.'
Calling the law a “medical gag rule,” Rodriguez said his evidence would show that the law interferes, on an ongoing basis, with his ability to properly diagnose and treat his patients.
He said he would testify that the law interferes “with the free and open exchange of information expressly required” of him “by the ethical obligations imposed by the medical profession.” Rodriguez said he was “ethically prohibited” from signing the required confidentiality agreement.
The U.S. District Court for the Middle District of Pennsylvania dismissed Rodriguez's complaint. It said Rodriguez lacked standing because he didn't allege that he had been in any situations in which he needed to obtain the information, that the act had constrained his communications or that he had been forced to sign a confidentiality agreement.
Judge Marjorie O. Rendell wrote the opinion, which was joined by Judges Julio M. Fuentes and Maryanne Trump Barry.
Paul A. Rossi represented Rodriguez. Conrad O'Brien and the Pennsylvania Attorney General's Office represented the secretary.
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Senate Budget Aims to Expand Energy Production, Reform Permitting, Siting
Mar 19, 2015 | BNA Daily Environment Report
By David Schultz
Senate Republicans proposed a budget resolution for the coming fiscal year that is far less specific on environmental issues than the resolution introduced by their counterparts in the House earlier this week.
However, the resolution introduced March 18 by Sen. Mike Enzi (R-Wyo.), chairman of the Senate Budget Committee, does contain measures that would allow funds to be appropriated for energy exploration, water resources management and environmental statute reform.
The Senate budget resolution contains provisions that allow for spending-neutral or deficit-neutral funds to go toward the following areas:
• nuclear waste management reform,
• reform and reauthorization of Energy Department programs on renewable fuels, fossil fuels, nuclear energy or the electricity grid,
• expansion of North American energy production,
• energy infrastructure permitting and siting reform,
• reform of environmental statutes to promote job growth,
• flood control,
• expanding commercial water navigation opportunities and
• environmental restoration of waterways.
The Senate resolution also contains a measure, drafted by Sen. Rob Portman (R-Ohio), that would direct the Congressional Budget Office to adjust spending projections to take into account Portman's legislation on energy use reduction at federal buildings.
The House Republican budget resolution, introduced March 17, specifically targeted the economic effects of the Environmental Protection Agency's proposed Clean Power Plan rule (52 DEN A-5, 3/18/15).
A narrative summary of the House resolution also criticized as wasteful the spending by national security agencies on climate change research.
By contrast, the phrase “climate change” does not appear in the 89-page Senate budget resolution.
Overall, the Senate budget resolution would eliminate the federal deficit within 10 years, while the House resolution does so within nine years.
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Senate Plan Envisions Extensive Action on Energy, Resource Issues
Mar 19, 2015 | E&E Daily News
By Nick Juliano
The Senate Republican budget released yesterday envisions action this year on a wide range of energy and natural resource issues, including nuclear waste management, mineral rights, environmental regulations and payments to regions with abundant federal lands.
Senate Budget Chairman Mike Enzi's blueprint came a day after House Republicans outlined their own proposal to guide tax collection, spending and other policy development this year. The House committee approved its budget yesterday, and the Senate panel expects to follow suit today.
Budget leaders hope to reconcile the plans and deliver spending targets to the Appropriations committees by next month. But securing approval of the documents will be difficult amid internal disagreements among Republicans over defense spending and Democratic objections to domestic spending cuts, among other issues.
The budget is nonbinding but sets a road map for the coming year and establishes caps for the Appropriations subcommittees as they begin to craft this year's annual spending bills. In the Senate, consideration of the budget also will likely end with a marathon "vote-a-rama" to close out next week, during which senators from both parties will offer amendments covering a variety of politically charged policies.
Enzi, a Wyoming Republican, included in the budget language calling for action on a wide variety of issues important to his home state. It includes "spending-neutral reserve funds" to pay for various pieces of legislation that could come forward later this year, including those related to energy policy, environmental regulations, water resources, mining, forestry and the needs of rural communities.
The budget also sets up potential action on areas of possible bipartisan agreement between the Republican Congress and President Obama, such as tax reform or trade policy. But it includes no shortage of conservative red meat, calling for a full repeal of the Affordable Care Act among other goals that stand little chance of becoming law as long as a Democrat is in the White House.
Details of the proposals would have to be filled in later by authorizing committees, but Enzi provides some broad guidance in the legislative text. For example, energy legislation could include "reform of the management of civilian and defense nuclear waste," expansion of energy production, and "reform of the permitting and siting process" among its provisions.
Enzi separately includes a reserve fund welcoming efforts to "reform environmental statutes." Another fund welcomes "water resources legislation" to address flood control, navigation and environmental restoration projects. The navigation industry and other stakeholders have been urging additional funding after policy reforms were enacted in last year's Water Resources Reform and Development Act (E&E Daily, March 12).
Two provisions in the budget relate to potential mining legislation. One envisions a bill on "mineral security and mineral rights" that could include measures to reduce mineral imports and address "the authority to deduct certain amounts from mineral revenues payable to States." The provision makes room for legislation to address U.S. dependence on imports for a number of metals and minerals, including rare earth elements.
Another provision contemplates reforming the Abandoned Mine Lands program, which uses fees collected from coal companies to clean up historical damage from extraction. Obama's budget request includes a proposal to speed up the spending of $1 billion from the AML fund to help boost the Appalachian economy, plus a measure to shore up the United Mine Workers of America benefits program, which has ties to the AML fund.
Enzi has been keen on getting back more of the AML payments his state lost during the 2012 transportation bill negotiations, when lawmakers used funds originally meant for Wyoming as an offset to the bill. Even though the state is certified to have finished cleaning up its priority sites, it gets Treasury payments, according to a 2006 formula.
Western priorities also get spotlighted in the budget, which includes a reserve fund anticipating forestry legislation that could increase timber production and reform how the government budgets for wildfire suppression.
The Forest Service in recent years has increasingly had to borrow from other accounts to cover wildfire costs. The Obama administration this year proposed allowing partial reliance on disaster funds outside the Forest Service's budget, and the idea has won some early support from key appropriators on both sides of the aisle (E&E Daily, March 4).
Also in the budget is a provision welcoming reauthorization of funding for the payments in lieu of taxes (PILT) program, which is key to Western counties that feature broad swaths of federal land. The payments help make up for lost property taxes that counties cannot collect from the federal government. A bipartisan trio last month introduced legislation to restore mandatory PILT funding, among other proposals (E&E Daily, Feb. 13).
Enzi's budget also encompasses legislation from Sens. Rob Portman (R-Ohio) and Cory Gardner (R-Colo.) to require the Congressional Budget Office to look more favorably at certain types of energy efficiency contracts. Proponents say the change would fix a defect in CBO's previous approach that prevented it from considering the cost savings such contracts can deliver (Greenwire, March 18).
Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) recommended many of the policies in the views-and-estimates letter she sent Enzi last month, ENR spokesman Robert Dillon said, but he declined to release the full document. Murkowski's committee has jurisdiction over energy exploration, Department of Energy programs, nuclear waste management and natural resources policies, among other areas.
Murkowski has said she hopes to produce a comprehensive energy bill later this year that would address areas including infrastructure needs, energy efficiency and increased supplies.
"The chairman has been clear on her plans to move broad energy legislation; there's a lot of good ideas out there, and the energy landscape is fundamentally different than it was in 2007, the last time Congress attempted a major energy bill," Dillon said. "I'd say we're excited to get to work, but we're already working."
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Pollution Liability Policy Covers Claims From Gas Explosion, Wisconsin Court Rules
Mar 19, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A pollution liability insurance policy provides coverage for injury and damage claims resulting from a natural gas explosion, not just injuries caused by exposure to natural gas itself, the Wisconsin Supreme Court unanimously ruled March 17 (Acuity, a Mutual Ins. Co. v. Chartis Specialty Ins. Co., 2015 BL 71186, Wis., No. 2013AP1303, 3/17/15).
The insurer owed a duty to defend a policyholder that accidentally breached a natural gas pipeline—a “pollution condition” covered by the policy—and faced litigation by four victims of the resulting explosion, the court said.
Jeffrey O. Davis, of Quarles & Brady in Milwaukee, who isn't involved in the case but whose practice includes environmental insurance, told Bloomberg BNA March 18 in an e-mail that the decision may help prevent insurers from avoiding their obligations.
“From a policyholder's perspective, when you have cases that present close questions of which policy covers pollution and which excludes it, you don't want the two insurers each pointing the finger at the other, leaving the insured without coverage,” Davis said. “This decision should go a long way towards preventing that from happening.”
The policy issued by Chartis Specialty Insurance Co. included coverage for any injury or damage caused by the release of an “irritant or contaminant” and supplemented a comprehensive general liability policy issued by Acuity (formerly Mutual Auto Insurance Co.).
Acuity filed a third-party complaint against Chartis when it refused to contribute to defense of the claims.
The state supreme court rejected Chartis's assertion that it had no duty to defend or indemnify the policyholder, Dorner Inc. Chartis said it owed no duty to Dorner because the injuries and property damage were caused by the explosion and fire, rather than the contaminating qualities of the gas itself.
Natural gas is a “pollutant” within the meaning of the policy, the supreme court said, and the undisputed evidence showed the gas leak caused the explosion that resulted in the injuries and damage alleged by the victims.
The supreme court reinstated a summary judgment ruling in favor of Acuity, reversed a contrary ruling of the Wisconsin Court of Appeals, and ordered Chartis to contribute 50 percent of the costs in defending the lawsuits brought by victims of the blast.
Natural Gas Pipeline Explosion
Dorner employees damaged the underground natural gas pipeline during an excavation project. The resulting explosion and fire injured four people and caused property damage.
Acuity defended and indemnified Dorner in civil actions filed by the victims and filed a third-party complaint against Chartis to recover its costs in defending the claims.
A Wisconsin Circuit Court ruled that Chartis breached its duty to defend and indemnify and ordered it to share costs with Acuity on a 50-50 basis. The Court of Appeals reversed, holding that the injury and damage claims were not the result of “pollution conditions” as described in the policy.
Those conditions required the “release or escape” of a solid, liquid or gaseous “irritant or contaminant” in a quantity greater than that naturally present in the environment.
The state supreme court reversed Court of Appeals decision in a unanimous opinion.
Definition of ‘Contaminant' Debated
Natural gas “renders the surrounding ground and air space impure or unclean because natural gas is extremely flammable and explosive” and therefore qualifies as a contaminant under the policy, the court said, adding that the gas released at the site was in excess of naturally occurring levels.
It also was reasonable for Dorner to expect that the policy would cover damages from the accidental release of contaminants during an excavation, the court said.
The court wasn't persuaded that the release of the gas could be untethered from its consequences, as Chartis urged.
“On its face, the CPL policy covers claims of bodily injury or property damage ‘caused by Pollution Conditions'—nothing more, nothing less,” the court said. “Chartis does not explain why this court should read a more stringent causation requirement into this provision.”
Unusual Case?
The case presents the unusual question of how courts should interpret pollution liability policies.
“Decisions construing [pollution liability policies] have been few,” Davis said. “When we last did general research in this area, we only found a handful. In contrast, the decisions construing the pollution exclusion in a standard commercial general liability policy are too numerous to count.”
The court relied primarily on pollution exclusion clause decisions, with the exception of URS Corp. v. Zurich Amer. Ins. Co., 979 N.Y.S.2d 506 (Sup. Ct. 2014), in which a New York court considered a pollution liability policy similar to the one in the Acuity case.
That court ruled that the presence of toxic smoke in a fire wasn't sufficient to trigger coverage for injuries caused by the fire.
The court—concluding the interpretation of such a policy was a question of first impression—found a “close identity” between pollution exclusion clauses and policies that affirmatively cover pollution claims.
It noted “few cases that deal with interpretation of a pollution liability policy.”
Here, although the policy's definition was identical to that in URS, the Wisconsin supreme court distinguished the case because New York limits pollution exclusion clauses to instances of “broadly dispersed” pollution.
Judge Shirley S. Abrahamson wrote the opinion, joined by Judges Ann Walsh Bradley, N. Patrick Crooks, David T. Prosser Jr., Patience D. Roggensack, Annette K. Ziegler and Michael J. Gableman.
Counsel in the case did not respond March 18 to requests for comment.
The law offices of Meissner Tierney Fisher & Nichols and Grady Hayes & Neary represented Acuity.
Litchfield Cavo represented Chartis.
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Petroleum Refiners Sue EPA Over Ongoing Renewable Fuel Standard Rule Delays
Mar 19, 2015 | BNA Daily Environment Report
By Andrew Childers
Petroleum refiners asked a federal district court to compel the Environmental Protection Agency to issue its overdue renewable fuel standard blending mandates for 2014 and 2015 in a lawsuit filed March 18 (Am. Fuel & Petrochemical Mfrs v. EPA, D.D.C., No. 15-cv-00394, 3/18/15).
The American Fuel & Petrochemical Manufacturers and the American Petroleum Institute also asked the U.S. District Court for the District of Columbia to order the agency to respond to a petition seeking to have the blending requirements for 2014 reduced below the amounts required by statutory levels.
The EPA missed a Nov. 30, 2013, deadline to issue its renewable fuel standard requirements as well as a Nov. 30, 2014, deadline for its 2015 rule. The EPA has not yet proposed its renewable fuel standard for 2015.
The petroleum groups told the court that the EPA's failure to issue the 2014 and 2015 renewable fuel blending obligations by the statutory deadline is part of a pattern, with the rule being issued increasingly late each year. The increasing delays are harming petroleum refiners' ability to comply with the annual blending requirements, the associations said.
“As refiners of gasoline and diesel, plaintiffs’ members are ‘obligated parties' under the RFS program, which means that they must demonstrate that they meet four different Renewable Volume Obligations (‘RVOs’) on an annual basis,” the plaintiffs said. “Each member's annual compliance obligations are based on how much non-renewable gasoline and diesel they produce or import in a given year and on EPA's calculation of annual percentage standards for the four renewable fuel types for each compliance year.”
The petroleum associations announced plans to sue the EPA over the delays in issuing the annual renewable fuel standard requirements in 2014 after the agency announced it would not be able to finalize its 2014 standards that year. Instead, the EPA plans to issue standards for 2014, 2015 and 2016 this year (231 DEN A-5, 12/2/14).
The EPA had proposed (RIN 2060–AR76) reducing the overall renewable fuel standard blending mandate below the statutory requirements for the first time in 2014. The agency had proposed that petroleum refiners and importers blend 15.21 billion gallons of renewable fuels into their products in 2014 (78 Fed. Reg. 71,732). That is less than the 18.15 billion gallons required by the Energy Independence and Security Act (Pub. L. No. 110-140) because the agency didn't believe the fuel sector could absorb any additional ethanol.
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Obama to Order Cuts in Federal Greenhouse Gas Emissions
Mar 19, 2015 | The New York Times
By JULIE HIRSCHFELD DAVIS
President Obama will sign an executive order on Thursday to cut the federal government’s greenhouse gas emissions, a White House official said, his latest use of presidential power to address the root causes of climate change.
It is part of Mr. Obama’s effort during his last two years in office to use an expansive interpretation of his presidential authority to counter strong opposition from the Republican-controlled Congress to enacting climate legislation.
Having failed during his first term to push a cap-and-trade bill through Congress, Mr. Obama has begun a systematic effort to regulate pollution through the existing Clean Air Act, advancing new rules on emissions from cars and trucks, power plants and oil and gas wells.
While the federal government is a relatively small contributor to greenhouse gas emissions, the executive order is the president’s attempt to lead by example and push the private sector to change its behavior as a consequence. Continue reading the main story Related Coverage Obama Is Planning New Rules on Oil and Gas Industry’s Methane EmissionsJAN. 13, 2015
After signing the directive at the White House, Mr. Obama plans to visit the Department of Energy to tour its rooftop solar panels and talk to private suppliers to the federal government that are committing to reducing their greenhouse gas emissions.
Some of the companies will announce that they are setting new goals for reducing future emissions, the official said.
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Obama to Cut Federal Government’s Carbon Emissions
Mar 19, 2015 | The Washington Post
By Juliet Eilperin
President Obama will announce Thursday new steps in cutting the federal government’s greenhouse gas emissions, according to White House officials, an effort that several major U.S. firms will bolster by making their own carbon cuts.
The move comes on the day the president is meeting with Britain’s Prince Charles – a prominent environmentalist and climate change advocate — and his wife, the Duchess of Cornwall, in the Oval Office. Obama and Charles are slated to discuss the two nation’s efforts to address global warming, as well as encouraging corporate social responsibility, creating opportunities for young people and preserving historical and cultural ties between Britain and the United States.
The president will sign an executive order detailing how the government will cut greenhouse gas emissions linked to climate change, officials said, while several major federal suppliers will simultaneously announce commitments to cut their own carbon emissions.
After signing the executive order at the White House, Obama will tour the Energy Department’s rooftop solar panels and attend a round-table there where some of the federal suppliers will discuss their new climate commitments.
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2014: The Year We First Cut the Link Between Emissions and Economic Growth?
Mar 18, 2015 | Environmental Defense Fund
By Keith Gaby
For much of the last half-century, global economic growth was linked to increasing greenhouse gas emissions.
That doctrine was called into question last week when the Energy Information Administration reported that the global economy expanded by 3 percent in 2014, while emissions of carbon dioxide from the energy sector held steady at 2013 levels.
The news was surprising to us. Here at Environmental Defense Fund, we spent much of the past year analyzing what it would take to see emissions stabilize and begin to decline within the next five years. Too good to be true?
We concluded that turning the corner by 2020 is an ambitious but achievable goal, requiring substantial reductions of carbon dioxide and methane emissions, and that there’s a great deal of hard work to be done by a lot of people around the world in order to accomplish it.
Now comes the IEA saying we are already there? It seems too good to be true. It’s certainly too soon to know if this trend can be sustained.
It will take time to develop a deeper understanding of what's happening with emissions.
We need to know whether overall greenhouse gas emissions from all sectors - including methane leaked from the natural gas supply chain, nitrous oxides from soils, and other potent industrial gases - have similarly leveled off
But still, it’s good news and a sign that economic growth is possible without rising rates of CO2 emissions. At EDF, we’ve long believed that economic growth and environmental stewardship can, in fact, go hand-in-hand. The IEA's report suggests we’re onto something. China stands out
One of the largest contributions to the apparent 2014 emissions flat-lining, according to IEA, comes from China.
“The Chinese are bullish on their ability to tackle big challenges, given what's been accomplished in modern China,” Dan Dudek, our China program lead, noted in a recent post. “With this perspective, they also think that environmental problems can be solved.”
Indeed, China is planning to ramp up efforts in 2015 and beyond, including imposing stiffer fines for polluters, embracing cap-and-trade, and a national carbon trading market.
Let's use the evidence that clean and prosperious go together to increase our efforts, from local to global, to keep the momentum going. If we've seen emissions level off, the next step is to see them decline.
That sounds audacious, but until now, many would have said the same thing about economic growth sans increased carbon emissions. For the first time in 40 years, there's indication that a halt or downturn in emissions was the result of efforts to mitigate climate change - rather than the result of a global economic slow-down.
“The window of opportunity is open,” EDF President Fred Krupp likes to say. “To capitalize on that and turn the corner once and for all, there are four big levers we need to pull now.”
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New EPA Ozone Rule Will Hurt Economy
| The Hill - Op-Ed
By Reps. Pete Olson (R-Texas) and Bob Latta (R-Ohio)
Pollution is a serious problem. The thick, pea-soup smog that hung over major American cities like New York in the ’70s and ’80s — and famously hangs over Beijing today — is a legitimate concern in our communities. Looking at our cities today, we know that significant progress has been made. If done properly, we can continue the trend of improving air quality as we continue to grow our economy.
Just last month, the U.S. Environmental Protection Agency (EPA) finally released guidance to help states implement a 2008 rule to reduce smog (or ozone) levels to 75 parts per billion (ppb). It will be difficult, but states are getting to work. However, before states have had a chance to fully implement this 2008 rule, the EPA has already proposed a new, even lower ozone standard. This second rule sounds modest, cutting the allowed level from 75 ppb down to 65 or 70, but the real-world implications of that reduction on hardworking Americans and our economy are enormous.ADVERTISEMENTOzone is partially formed by the emission of man-made sources, which is what the EPA is targeting with this rule. While factories and cars emit the ingredients for ozone, we also face a tidal wave of ozone coming from China and Mexico, wafting into the United States and impacting our air quality.
Ozone also occurs naturally, dipping down from the (usually good) upper ozone layer or even being emitted by some trees and plants. The simple fact is that it’s physically impossible to get ozone levels to zero. Too many factors are outside our control.
That is what makes the EPA’s new proposal on ozone so difficult — the standards they are considering are so low that they are approaching levels we can’t reach. Achieving the levels the EPA wants is like trying to balance the federal budget without looking at defense or entitlements.
While current law doesn’t require the EPA to lower the standard, if it chooses to do so, it’s not allowed to consider whether the proposal is achievable, let alone affordable. It’s telling that almost half the reductions the EPA says are needed to meet the standard will come from emissions reduction technologies that don’t yet exist.
This will translate to greater costs for the average American. When a county is found in violation of the EPA’s ozone rule, economic growth becomes much harder. For one factory to expand, it must find another factory willing to shrink. Jobs become stuck in line, bogged down by red tape. At best, new highway projects face months of delay. At worst, the federal government can strip highway funding away from states as a penalty. Power plants could close, and new, job-creating industrial sites may be scaled back.
As states struggle to meet this unattainable rule, they must get creative in ways that go beyond job impacts. Communities in violation could face lower speed limits, limited construction hours and reformulated — generally more expensive — gasoline. Los Angeles has already been forced to restrict the use of backyard barbecues.
We believe there is room for a proper balance that achieves the goal of improving air quality while keeping our economy strong. That’s why we developed legislation that requires the EPA to factor economic impacts and feasibility in the rule-making process. Our bill, H.R. 1338, the Clean Air, Strong Economies (CASE) Act, requires the EPA to consider the cost and achievability of its rules. Health will always come first, but the agency should explain whether a regulation is even plausible.
Another key component is ensuring the EPA doesn’t change the goal posts in the middle of the game. As mentioned, states have barely begun to implement the current rule. Our bill would require the EPA to wait to lower the current standard until they have largely implemented the existing one. The CASE Act would also order the EPA to improve the process of explaining the costs and benefits of its rule and how it determines the evidence needed to find counties in violation.
Working together, we can improve air quality in our communities without hurting our economy.
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Small Manufacturers Ask for More Input, Coordination for Rules
Mar 19, 2015 | E&E Daily News
By Katherine Ling
Federal agencies are failing to adequately consider small manufacturers when developing regulations, a witness panel told the House Small Business Committee yesterday.
President Obama issued an executive order in 2011 directing federal agencies to take into account cumulative regulations and impacts on small businesses during the rulemaking process, but the witnesses at the hearing said the agencies were not following it.
"We need to take steps to ensure small businesses are on those panels instead of just large corporations," said James Goodwin, senior policy analyst at the Center for Progressive Reform.
He cited a Government Accountability Office report that found the Small Business Administration's Office of Advocacy was failing to do its job intervening in rulemakings to help make them "small-business friendly," and instead is corresponding mainly with larger firms or trade associations.
But Goodwin said the regulatory process is already considerably delayed by "wild goose" chases and other requirements that are counterproductive and duplicative.
"The failure to regulate some hazards related to the workplace, the environment, product safety, food safety and more, and the failure to enforce existing regulations on such hazards, results in thousands of deaths, tens of thousands of injuries and billions of dollars in economic damages every year," he said.
The House last month passed H.R. 527, which would expand requirements for agency to look at the direct and indirect impact a rule would have on a small business and provide a regulatory flexibility analysis. Previous versions of the measure were passed in the last two sessions of Congress but didn't make it out of the Senate.
Three of the four witnesses at the hearing represented a trade association, and they said their companies paid thousands of dollars in membership fees to keep track of regulation and ensure representation in the rulemaking. The trade groups were the Air-Conditioning, Heating and Refrigeration Institute (AHRI); the American Foundry Society; and the International Fragrance Association of North America (IFRA).
Cynthia Reichard, executive vice president of Arylessence Inc. and representing the IFRA, noted her company spent more than $750,000 a year to belong to associations, which can alert members to rule changes and analyze costs of rules for small manufacturers.
"We have to band together to have the bandwidth to approach Washington, D.C.," to try to provide input for regulations, she said. Coordination
Not only are agencies not considering the additional expenses compliance costs small businesses compared with their larger rivals, but they are not coordinating between each other, said Viktor Anderson, director of engineering at Structural Concepts, who was also representing AHRI.
Anderson said his company -- which supplies refrigerated food display cases to Starbucks among other clients -- may go out of business with new energy efficiency rules from the Energy Department finalized last year and to be implemented in 2017, compounded with proposed U.S. EPA rules for refrigerants that are scheduled to take effect next year (E&E Daily, March 17).
"Change the time frame intervals" for DOE reviews, Anderson said. Updates every five years "doesn't give us any breathing room," he said.
DOE must review a standard no later than every six years as part of the Energy Policy and Conservation Act of 1975 -- a requirement many efficiency advocates in the past have had to sue for to ensure agency compliance.
Anderson said his company went above and beyond to meet and exceed the 2012 standards, cutting the carbon footprint by 50 percent. The energy efficiency changes did save its customers money, as well as cut the nation's energy consumption and emissions, he said.
He added that, overall, the DOE 2017 rule on its own likely "won't affect us that much" because it mainly means switching from fluorescent lamps to light-emitting diodes -- although his company will need to check every single model of more than 400 existing models, which takes time and resources.
The wild card is that EPA has proposed eliminating the main refrigerant the company relies on, so Anderson said the company doesn't know what effect a new substitute will have on the products' energy efficiency.
"EPA took our refrigerant away, and so we are not even sure how or what to engineer," he said.
Advocates including Greenpeace note that some of the alternative refrigerants could be up to 40 percent more energy efficient than hydrofluorocarbons.
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More Stringent Air Toxics Rule for Off-Site Waste, Recovery Facilities Set by EPA
Mar 19, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency will require more stringent toxic air pollutant controls for tanks and process vents at facilities that store, treat, recover or dispose of waste, used oil and used solvents, in a final rule published in the Federal Register March 18.
The EPA rule (RIN 2060–AR47) updates national emissions standards for hazardous air pollutants (NESHAP) for off-site waste and recovery operations after the agency finished a review of available control technologies and health risk posed by the industry's toxic emissions. The EPA identified new pollution control technologies available for waste management units and recovery operations as part of its review (80 Fed. Reg. 14,248).
The agency said the final rule is expected to cost industry $4.1 million in capital costs and $1.1 million in annualized costs. The regulation is expected to reduce emissions of hazardous air pollutants by 211 tons per year.
The final rule also establishes more stringent leak detection and repair requirements for valves and pumps.
The rule requires connector monitoring as required by 40 C.F.R. Part 63(h), the national emissions standards for organic hazardous air pollutants for equipment leaks. The option for facilities to comply with the toxic pollutant standards for equipment leaks at 40 C.F.R. Part 61(v) is eliminated.
The EPA's final rule also removes language exempting facilities from complying with the air toxics emissions standards during periods when equipment is starting up, shutting down or malfunctioning. The rule requires facility operators to submit compliance reports electronically.
Sections 112(d)(6) and 112(f)(2) of the Clean Air Act require the agency to review its hazardous air pollution emissions limits every eight years and promulgate additional standards to protect public health against any residual risk if further controls are deemed necessary. The EPA first issued standards for off-site waste and recovery operations in 1996.
The EPA proposed the rule in July 2014 (127 DEN A-13, 7/2/14).
The new standards take effect immediately.
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EPA Critics Claim Lack Of Cost Review Undermines Basis For Utility MACT
Mar 18, 2015 | InsideEPA
By Stuart Parker
Utility and mining industry groups are urging the Supreme Court to scrap EPA's utility air toxics rule by arguing that the agency's failure to consider costs when deciding that the rule was “appropriate and necessary” makes the rule unlawful because costs are a central factor in the decisionmaking process of developing new regulations.
The claim -- outlined in March 18 final briefs filed by critics of the utility maximum achievable control technology (MACT) air rule -- builds on existing arguments from industry that EPA erred by not weighing costs in its decision to list power plants as subject to the air law's MACT air toxics program. The Supreme Court has agreed to hear litigation over the utility MACT on the narrow issue of whether the listing decision should have included a cost review.
Three related petitions to the high court, National Mining Association (NMA) v. EPA, et al., Utility Air Regulatory Group (UARG) v. EPA, et al., and State of Michigan, et al. v. EPA, et al., seek to overturn EPA's determination that it is appropriate and necessary to regulate air toxics from power plants, a legal prerequisite for the subsequent MACT.
The final briefs from industry and the state of Michigan, which also opposes the rule, build on claims raised in previous briefing in the consolidated litigation, which the court is slated to hear March 25.
For example, UARG in its final brief says EPA erred by claiming that the “appropriate and necessary” test applies to the initial decision to list electric generating units (EGUs) as subject to an air law section 112 air toxics rule.
EPA and its supporters argue that there is no Clean Air Act obligation to weigh costs in that initial step, that the cost review requirement only triggers in a subsequent rulemaking setting MACT, and that the agency did so in the utility rule. EPA found the benefits of the rule massively outweigh the costs, chiefly through health “co-benefits” of reducing particulate matter -- which is not a hazardous air pollutant (HAP), such as mercury, targeted by the rule.
UARG in its final brief says that “'appropriate and necessary' calls on EPA to make the ultimate substantive regulatory determination with respect to . . . regulation of EGU HAP emissions.” If it fails to consider costs at the outset, therefore, EPA cannot use the defense that it did so later, UARG says.
Separately, NMA in its final brief makes the same argument as the utility group. The air law “does not say that EPA shall assess whether listing is appropriate and necessary. It directs EPA to determine whether 'such regulation' -- that is, regulation 'under this section' [112] -- is appropriate and necessary.”
MACT Regulation
NMA also notes that Congress established different procedure for regulating power plants than other categories of emissions sources. The group says that this approach supports its contention that costs should have been considered from the beginning in EPA's calculation of whether to regulate utilities with a MACT.
EPA and its supporters have argued that the structure of the air law -- requiring that costs be taken into consideration in the standard-setting phase -- supports their case, because the agency weighed costs when developing the MACT standards. But NMA in its brief counters that the special status of power plants in fact proves the reverse: that power plants are a special case, and must be considered differently than other sources.
“Congress, in contrast to its otherwise applicable approach, and because of its concern about the multiple, costly regulations which it had adopted for the power sector, wanted EPA to exercise policy judgment as to whether the severity of the impacts warrant the type of regulation 'under this section' that EPA has undertaken. That judgment necessarily involves weighing costs and benefits,” NMA argues.
NMA also calls attention to what it says is the massive disparity between high costs and low monetized benefits, faulting EPA for counting the co-benefit reductions of particulate matter emissions not regulated by the MACT.
In its final brief, Michigan says that EPA's failure to consider costs is inherently unreasonable, given how expensive the regulation is by EPA's own estimates. The state also repeats an argument raised by petitioners previously, that by ignoring costs in the “appropriate and necessary” finding, EPA robs the word “appropriate” of meaning, because it made the decision to regulate based purely on the finding that it is “necessary” to mitigate health risks.
EPA's action deprives “Congress’s command that EPA decide whether regulation is appropriate of any meaning and instead allows EPA to impose costs that are wholly disproportionate to their benefits - to impose $9.6 billion in costs on Americans who consume electricity for a benefit of only $4 to $6 million worth of HAP emission reductions.”
EPA's Supporters
Meanwhile, a number of other groups in recent amicus briefs filed with the high court support EPA's position to not consider costs in its initial decision to list power plants under a MACT regulation.
For example, the Union of Concerned Scientists in its March 13 brief says, “The structure and language of the [air law] plainly dictate that the [appropriate and necessary] finding should be based on a scientific determination of public health impacts, not cost.”
Other groups filing recent briefs in support of the agency include the National Congress of American Indians, which stresses the risks to native populations from eating mercury-laden fish, and a separate brief from emissions control manufacturers, who argue that the costs of the MACT cannot be estimated before standards are set. A coalition of health scientists also filed a brief, drawing the court's attention to the risks posed by mercury and the health benefits of the rule's anticipated reductions in mercury emissions.
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Utilities, States Back Draft Coal Ash Bill As Advocates Warn of Major Human Harms
Mar 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
State environmental regulators tasked with implementing the Environmental Protection Agency's final coal ash rule and the utility industry voiced strong support March 18 for draft House legislation that they said would enable states to draft, implement and enforce their own permitting programs using minimum federal technical requirements set out in the EPA rule.
Environmental advocates strongly disagreed and told the House Energy and Commerce Subcommittee on Environment and the Economy the legislation would create an inconsistent patchwork of state programs, delay compliance deadlines and eliminate critical protections from the final rule that would endanger human health and the environment.
Republicans on the subcommittee said they remained open to changes in the legislation but said it would allow states to directly enforce the programs, while allowing the EPA a role if state programs are found to be deficient. Rep. David McKinley (R-W.Va.), the bill's sponsor, said the draft proposal would remove uncertainty for coal ash recyclers by ensuring the EPA never regulates the material as a hazardous waste.
Democrats on the subcommittee said the EPA had already made significant concessions to states, utilities and recyclers in the final rule and called the draft legislation “unnecessary.” Instead, Democrats on the subcommittee said Congress should conduct rigorous oversight of the rule's implementation but give it the opportunity to work.
Stanislaus to Give Testimony
Mathy Stanislaus, EPA assistant administrator for solid waste and emergency response, will testify on the draft legislation March 24 during the second part of the legislative hearing.
In December 2014, the EPA released the first final federal standards (RIN 2050-AE81) for the management of coal ash under Subtitle D of the Resource Conservation and Recovery Act, subjecting the material to nonhazardous waste regulations. Under the rule, states are “strongly” encouraged to adopt those minimum standards, but enforcement is left to citizen lawsuits (245 DEN A-1, 12/22/14).
Addresses Implementation Concerns
Representatives from the Environmental Council of the States, Association of State and Territorial Solid Waste Management Officials, and Utility Solid Waste Activities Group said McKinley addressed concerns they had about the implementation and enforcement of the EPA's final rule.
“We recognize that the final EPA regulations were self-implementing, meaning that industry would be expected to move ahead with implementation regardless of any state or federal agency action, ” David Paylor, director of the Virginia Department of Environmental Quality, who testified for ECOS, said. “The draft bill sets out a three-to- four-year process for compliance by the facilities. While this may seem like unnecessary delay, it recognizes implementation realities.”
State and utility groups previously expressed concern the self-implementing nature of the rule meant companies would have to comply with the minimum federal standards and existing state requirements—even if the state requirements were stricter. Those interests said McKinley's bill would remove the risk of dual regulation, while continuing to allow citizen groups a role in enforcement.
“[The bill] would augment the rule's enforcement options by enabling the permitting body also to take direct enforcement action against noncompliant facilities, as opposed to having enforcement responsibility borne solely on the back of citizen suits,” Jim Roewer, testifying for USWAG, said. “Whereas EPA currently has no role in administering and enforcing the CCR rule, the bill would increase EPA's authority by directing it to review the adequacy of state coal ash permit programs and directing EPA to implement the permit program” when states fail to do so adequately.
Advocate Calls Bill ‘Dangerous.'
The lone witness to oppose the legislation, Lisa Evans with Earthjustice, said the draft bill would provide “significant benefit only to polluters” and called it “unconscionable” given the EPA made significant concessions to industry groups in its final regulation.
“The bill will eliminate, weaken and delay protections established in the EPA's final CCR rule,” Evans said. “After decades of dangerous disposal of billions of tons of coal ash, it is abhorrent that today's bill proposes further delay of critical safety measures that have finally been put in place by the EPA.”
In particular, Evans said the bill would weaken public information disclosures about contaminated sites, remove a ban on dumping coal ash in drinking water, eliminate a ban to quickly close legacy ponds and delay compliance deadlines with key aspects of the final rule. She also said the bill lacked a federal standard to ensure protection of human health and the environment.
McKinley Says It's About Certainty
While others testifying framed the issue in terms of enforcement and human health, McKinley said his bill is seeking primarily to protect the coal ash recycling industry by ensuring the material could never be regulated as a hazardous waste under RCRA.
“What this legislation intends to do is to codify that fly ash is not a hazardous material—that's what this fight has been about from day one,” McKinley told Bloomberg BNA before the hearing. “A week from now, they may change their mind. A month from now, maybe two years from now, that doesn't give closure to this issue. So that's primarily what we're trying to do.”
McKinley said he continues to work with the EPA and said “most people are on board with this.” Those who oppose it likely have a “philosophical” objection to continuing to use coal for electricity generation, he said.
Overall, the legislation respects the primacy of states in setting up their own programs but maintains minimum federal requirements.
“If the state doesn't do the job, then the federal job can come in and take over the program,” McKinley said. “We're still giving the states flexibility. If California wants to pass a more draconian legislation on fly ash, go for it. It's a state-by-state issue, not one blanket [rule] for everyone.”
Environmental Groups Strongly Critical
Separately, in a letter released March 18, more than 120 environmental and public interest groups criticized the draft legislation as insufficiently protective of human health and the environment. Signatories included the Sierra Club, National Association for the Advancement of Colored People, Clean Water Action, Public Citizen and Environment America.
“The EPA's 2014 coal ash rule will help provide immediate protection to our most vulnerable communities and our irreplaceable water resources,” the letter said. “Congress must refrain from causing irreparable harm by denying and delaying such protection.”
A different group of more than 100 private citizens affected by coal ash spills wrote the committee to ask for an opportunity to share their perspectives.
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White House Reviewing Controversial Mining Rule
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
The White House is conducting its final review of a controversial regulation meant to protect streams from mountaintop removal mining.
The regulation from the Interior Department’s Office of Surface Mining would change a 2008 rule issued by the Bush administration that a federal court struck down in February 2014.
The White House Office of Management and Budget (OMB) said it received the rule for review Tuesday but did not provide any details of the proposal. The OMB review is the final step before the proposal, which would also cover other forms of surface coal mining, can be made public.
Interior Secretary Sally Jewell briefly mentioned the regulation Tuesday in a speech.
“Further addressing the impacts of energy development, we’re moving forward with a proposal to modernize the way coal mining operations protect community water sources, and make sure companies restore streams and forests to a healthy condition,” she said.
Environmentalists and Democrats have said the 2008 rule is too weak in protecting streams from being polluted by mining. Surface mining and mountaintop removal mining both involve removing massive amounts of land and putting it elsewhere.
The District Court for the District of Columbia found last year that the government didn’t properly consult with the Fish and Wildlife Service on the effects of surface mining on species that live in or depend on streams. Instead, the surface mining office relied on an outdated biological assessment, the court said.
The coal mining industry and its Republican allies have fought hard against the Obama administration’s attempts to strengthen the rule, calling it part of Obama’s “war on coal.”
When the surface mining office first said it was considering changes in 2009, the National Mining Association said the effort was “jeopardizing a fragile regulatory compromise that has taken more than a decade to establish.”
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Dems Say GOP Coal Ash Bill is Premature
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
House Democrats are saying that the GOP’s bill on coal ash disposal is premature, since a regulation on coal ash has only just been made final.
Democrats on the House Energy and Commerce Committee’s environment subpanel said at a Wednesday hearing that lawmakers should wait to see how the Environmental Protection Agency’s (EPA) coal ash rule pans out before proposing bills to amend it.
Republicans drafted the bill to resolve some problems they identified with the regulation, including the limited certainty that it provides to utilities operating coal power plants and the fact that the EPA would have almost no ability to enforce the standards.
“At this point … I do not see the need for legislation,” said Rep. Paul Tonko (D-N.Y.), ranking member of the subcommittee.
“There is a need for rigorous, consistent and fair oversight of the rule’s implementation,” he said. “If the rule does not result in appropriate coal ash disposal, or if it results in conflicts between state and federal authorities, or leads to excessive litigation, it can be revised or Congress can pass legislation to correct any problems that are identified.”
Rep. Frank Pallone (D-N.J.), top Democrat on the full committee, agreed with Tonko.
“I do not see a need for legislation at this time,” he said. “Instead, I think EPA and the states should be allowed to move forward and implement the final rule, subject to this Committee's oversight.”
The December rule from the EPA set the first national standards for disposal of coal ash, which often sits in ponds near major waterways and contains toxic substances like mercury and arsenic.
It sets new standards for ponds and dry disposal sites designed to stop leaks and major spills, and requires that they are not located near sensitive areas like wetlands and earthquake zones.
Utilities and coal ash recyclers avoided the worst regulations, which could have labeled coal ash as hazardous and required sweeping new standards.
But environmentalists complained that the rule did not go far enough, since they were seeking a hazardous designation. In addition, the rules can only be enforced through citizen lawsuits.
Republicans said their bill maintains the main protections in the EPA’s rule. It adds certainty for industry by preventing the EPA from enacting stricter rules and reducing the need for lawsuits.
But Lisa Evans, an attorney with Earthjustice, told the panel that the rule weakens or delays many of the most important provisions of the EPA rule.
Nonetheless, the GOP was proud of its work.
“We heard from almost all stakeholders at our January hearing that a legislative solution is still needed to best regulate coal ash,” said Rep. Ed Shimkus (R-Ill.), the subcommittee’s chairman.
“The legislation before us … ensures that the states have the flexibility they need to make the program work and are able to complete it in a reasonable time frame,” said Rep. David McKinley (R-W.Va.), the bill’s author.
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States Grant 165 Power Plants Extension To Comply With Mercury, Air Toxics Rules
Mar 19, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
State air agencies have granted 165 power plants a one-year extension for complying with the Environmental Protection Agency's 2012 mercury and air toxics standards, according to a survey conducted by the National Association of Clean Air Agencies.
The survey of 67 air regulatory agencies in 48 states, the District of Columbia and Puerto Rico, released March 17, shows that almost all requests for an extension have been granted. Only eight requests haven't been granted, although four of those requests are still under consideration.
Of the remaining requests, two were denied due to incomplete information, one may no longer be needed and one request was accommodated through a permit waiver that made the extension unnecessary, according to the survey.
The mercury and air toxics standards (RIN 2060–AP52; RIN 2060–AR31) set limits on power plant emissions of mercury, filterable particulate matter as a surrogate for toxic metals and hydrogen chloride as a surrogate for acid gases.
Compliance with the standards, which requires some existing utilities to make significant investments in control technology to limit emissions, is estimated by the EPA to cost the power industry $9.6 billion per year (246 DEN A-1, 12/22/11).
The MATS rule includes a three-year period for power plants to come into compliance, with a deadline of April 16, 2015. The rule allowed for permitting authorities to grant one-year extensions on a state-by-state basis, something that then-EPA Administrator Lisa Jackson said would be encouraged.
States Seen Responding to Utilities' Needs
Bill Becker, executive director of NACAA, told Bloomberg BNA in a March 18 e-mail that the survey shows that states have been responsive to the needs of utilities and that most utilities are on schedule to comply with the MATS rule by April 16. Previous surveys conducted in 2013 and 2014 by NACAA also showed that most compliance extension requests were being granted (86 DEN A-14, 5/5/14).
Plants that received an extension likely won't have to come into compliance until after the U.S. Supreme Court issues its decision in litigation challenging the MATS rule (Michigan v. EPA, U.S., No. 14-46, order filed 3/9/15; 46 DEN A-1, 3/10/15).
The court will hear oral arguments March 25 on whether the Clean Air Act required the EPA to consider cost when the agency determined it was appropriate and necessary to regulate air toxics emissions from power plants, a finding that ultimately led to promulgation of the MATS rule.
Effect of Court's Ruling
By the time the court issues its decision in Michigan v. EPA, most existing power plants will already have either come into compliance with the MATS rule or shut down, said Jeffrey Holmstead, a partner at Bracewell & Giuliani LLP and former EPA assistant administrator for air and radiation under President George W. Bush.
Holmstead told Bloomberg BNA March 17 that if the court finds the EPA acted improperly, the court could either vacate MATS and instruct the EPA to re-do its finding on power plant emissions or remand the rule back to the EPA for further consideration but leave the standards in place.
If the MATS rule is left in place, even power plants that receive a one-year extension would still have to comply with the rule, unless the court stays the rule or suspends the compliance deadlines, Holmstead said.
That is because if the rule is remanded, it's unlikely that the EPA would complete its work on remand before the 2016 compliance deadline, Holmstead said.
Requests for Additional Extension
There is an opportunity for utilities that are needed to ensure reliability of the electricity grid to obtain an additional year to come into compliance from the EPA, which would give them until April 2017.
That policy, established in a 2011 memorandum, allows power plants to receive an additional year through an enforcement process under Section 113 of the Clean Air Act but only if halting plant operations would potentially affect reliability
The EPA told Bloomberg BNA in a March 18 e-mail that the agency has received two requests for an administrative order under that policy.
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Mar 18, 2015 | National Journal
By Ronald Brownstein
With a strong environmental community, a vibrant fossil-fuel industry, and a thriving clean energy sector, Colorado encapsulates all the contending interests driving the complex politics of energy and climate. That's why there are important clues for the national energy debate in the recent partisan collision here over requirements for utilities to generate more electricity from renewable-energy sources.
Such "renewable-portfolio standards," requiring utilities to generate some of their power from sources like solar and wind, have spread widely since the 1990s. Today, 29 states have adopted such mandatory requirements, with another seven having established voluntary goals.
These requirements, as intended, have jump-started the market for renewable energy. Galen Barbose, a research scientist at the Lawrence Berkeley National Laboratory, says the states with these mandates have accounted for about two-thirds of the total increase in renewable generating capacity that utilities have added nationwide in recent years. That means the states with mandates are annually adding enough renewable production to power about 1.5 million homes.
To meet renewable standards, utilities are relying mostly on wind. And with wind-generated electricity now often competitive in price with coal and natural gas, virtually all the states with mandates are on track to reach them at relatively modest cost. Barbose calculates that meeting the requirements has raised electricity rates by less than 3 percent for consumers.
The process has advanced smoothly enough that several states have raised their initial thresholds. Colorado initially required Xcel, its largest utility, to generate 10 percent of its power from renewables, but the Legislature subsequently raised that to 30 percent by 2020. (Other utilities face lower requirements.) Even with that higher goal, Xcel "is on track, if not ahead of schedule," says Jeffrey Ackermann, director of the governor's energy office.
Initially, many state renewable requirements operated with bipartisan support. But they have always found more fertile soil outside the most conservative states. Of the 29 states with renewable requirements, 23 supported President Obama in 2012. And no new state has imposed a renewable mandate since Kansas did in 2009. That suggested a kind of stalemate, with renewable standards stalling in red states but solidifying, or even expanding, in blue-leaning ones.
But an aggressive effort by conservatives to roll back state standards has disrupted that balance. Encouraged by the conservative American Legislative Exchange Council, state legislative Republicans have introduced dozens of bills since 2013 to repeal or retrench renewable requirements. So far just two have passed: Ohio last year suspended its renewable requirement for two years, and West Virginia, a core coal state, repealed its standard in February.
Like a hillside fire, the battle then jumped to Colorado. After Republicans won a one-seat majority last November, the state Senate in February approved legislation to retrench the renewable requirements, on an 18-17 party-line vote. Democrats, who still narrowly control the state House, then killed the bill in committee. But every Republican on that committee voted for a rollback. Given the monolithic GOP opposition, "the requirement is definitely at risk again," if Republicans regain the state House in 2016, says Democratic state Rep. Max Tyler, who chairs the Transportation and Energy Committee.
Local analysts agree the spark that ignited the rollback effort was the legislation that Democrats, then controlling the Legislature, passed in 2013 to double renewable requirements (previously set at only 10 percent) on rural utilities. That measure, approved soon after the Legislature tightened gun-control restrictions, sharpened antagonism between rural communities and a Democratic coalition that, as in most states, is heavily urbanized in Colorado.
Renewable supporters like Tom Plant, senior policy adviser at Colorado State University's Center for the New Energy Economy, believes the economics of renewable energy should erode rural resistance. In Colorado, he notes, large royalty payments are flowing to farmers and ranchers who have installed wind turbines. Across the West, rural states such as Wyoming and Idaho are building wind capacity to export electricity, mostly to more densely populated blue states.
But while clean energy is generating more investment and employment, its economic impact is still dwarfed by the resurgent fossil-fuel industry, which often resists these mandates. Ideology reinforces interest: Many tea-party conservatives see earlier GOP support for renewable requirements as evidence that the party had deserted small-government principles. It is telling that even Republican Colorado state legislators who represent areas receiving substantial renewable investments supported the rollback.
All this points to continuing state conflict over renewable mandates. So does another factor: The Environmental Protection Agency's coming regulations to reduce carbon emissions from power plants will pressure states to shift more electrical generation from coal to renewable sources (or natural gas). But Senate Majority Leader Mitch McConnell, who represents coal-producing Kentucky, is already urging states to obstruct the regulations by refusing to develop implementation plans. In Colorado, state Senate Republicans are formulating a bill that would allow the state Legislature to block Democratic Gov. John Hickenlooper from submitting a compliance plan, as he intends to do. As in many states, Colorado's skirmishing over renewable energy may be just the distant thunder for the coming national confrontation over climate.
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Canada Readying Compliance Regime For Streamlined Environmental Permitting
Mar 19, 2015 | BNA Daily Environment Report
By Dean Scott
Recent changes to Canada's environmental permitting process have streamlined the process for major energy and other projects without sacrificing tough compliance requirements, a Canadian regulatory official said March 18.
“All and all, we have a regime that is more streamlined” but still “retains features” from the previous permit system, which required consultations with native communities that could be affected, said Helen Cutts, the Canadian Environmental Assessment Agency's vice president for policy development.
“We are now in the process of developing an enforcement and compliance regime so we can carry out the work” of ensuring that project developers and other permit applicants meet the new environmental assessment requirements, she said.
Canada is in the process of developing policies on how it will enforce the new permitting requirements set out in the 2012 Jobs, Growth, and Long-Term Prosperity Act, also known as Bill C-38, a law designed to streamline Canada's environmental assessment process.
A second law passed that year, known as Bill C-45, included a provision eliminating environmental reviews of pipeline projects crossing or otherwise affecting navigable waters.
Environmental groups have complained that the revisions weakened the environmental review process and shut out public participation, particularly for native aboriginal communities in Canada.
Cutts, who spoke at a forum on Canada and U.S. environmental reviews at the Wilson Center's Canada Institute, took issue with that criticism, saying the 2012 changes not only improved “the compliance regime” but also maintained important features of the previous permitting process, “which includes good public participation, as well as integrating aboriginal consultation throughout the process.”
Uphill Battle for U.S. Changes?
In the U.S., Republicans in both the House and Senate, and some Democrats, hope to follow suit with a similar streamlining of environmental reviews, including setting concrete deadlines for when agencies would have to make a decision on a permit.
Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.) are trying to move their Federal Permitting Improvement Act (S. 280) through the Senate Homeland Security and Government Reform Committee and hope to lure committee Democrats onto the bill at a markup expected in late April.
Their bill would set up an interagency council to coordinate project permitting and environmental reviews required under the National Environmental Policy Act, the 1970 law that requires environmental assessments for major projects. It also would give those opposed to a permit a deadline, requiring them to file a challenge within 150 days. Proponents say that would address complaints that the absence of deadlines under the current system has led to years of delays and uncertainty in financing for U.S. projects.(47 DEN A-12, 3/11/15).
The House Judiciary Committee is moving a similar bill to expedite project permits known as the Responsibly and Professionally Invigorating Development Act, or RAPID Act, and authored by Reps. Tom Marino (R-Pa.) and Collin Peterson (D-Minn.)(41 DEN A-10, 3/3/15).
The Judiciary panel is expected to mark up their RAPID Act before the end of March, Democratic and Republican committee aides told Bloomberg BNA March 18.
Fred Wagner, a principal with the Beveridge & Diamond law firm who focuses on project permitting, said at the U.S.–Canada regulatory forum that any changes to U.S. law are likely to fall well short of addressing one complexity: consolidating the various regulatory requirements of multiple agencies into a single permitting entity.
“No. NEPA is going to remain the province of each of the agencies that take the lead” in permitting under NEPA, depending upon which environmental laws or regulations could be affected by a project, according to Wagner, who was the Federal Highway Administration's chief counsel from 2011 to 2014.
“That's not really going to change in the U.S. system,” he said.
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