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(ACC Mentioned) US EPA Proposes Reporting Rules for Nanomaterials
Mar 26, 2015 | Chemical Watch
The US EPA is proposing reporting and recordkeeping requirements for nanomaterials in the marketplace, a move the agency says will help its continuing evaluation of the substances, “informed by available scientific, technical and economic evidence.” -
Automotive, Electronics Trade Bodies Prefer Bipartisan TSCA Bill
Mar 26, 2015 | Chemical Watch
By Leigh Stringer and Dinesh Kumar
Two leading US electronics and automotive industry associations are backing a bill which includes strong federal powers, instead of its rival which gives more power to state governments. -
Long Distance Government
Mar 25, 2015 | Huffington Post
By Bill Couzens
Senate bill S.697, legislation to reauthorize and modernize the Toxic Substances Control Act (TSCA), will create stumbling blocks for states that wish to protect their citizens and their families from harmful chemicals. -
Review Finds Bisphenol F and S Effects Similar to Bisphenol A
Mar 26, 2015 | Chemical Watch
A review of recent papers on the hormonal activities of bisphenol F (BPF) and bisphenol S (BPS) concludes that most demonstrate the compounds have similar potency and hormonal properties to bisphenol A (BPA). -
Obama to Ask Chemical Agency Chief to Resign, Lawmakers Say
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
House lawmakers say President Obama is asking the embattled chairman of the Chemical Safety Board (CSB) to step down. -
House Dem Hopeful About Senate Cyber Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Elise Viebeck
The co-chairman of the House Cybersecurity Caucus said he is hopeful about the Senate Intelligence Committee’s threat-sharing bill, though he has not seen a final version. -
House Dem to Introduce Separate Data Breach Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Elise Viebeck
A co-chairman of the House Cybersecurity Caucus is planning to introduce a data breach bill that would not create federal security standards for private companies. -
House Intel Panel Approves Cyber Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Cory Bennett
The House Intelligence Committee unanimously approved its cyber threat data-sharing bill during a Thursday morning markup. -
(ACC Mentioned) Comment Period on NEPA Climate Guidance Ends with a Bang
Mar 26, 2015 | E&E - Greenwire
By Hannah Northey and Jean Chemnick
Top Senate Republicans yesterday blasted draft guidance on how federal agencies should incorporate climate change into their project reviews as an "illegitimate expansion" of a key environmental law. -
Senators Launch Online Hub to Hear From 'Main Street' on Rules
Mar 26, 2015 | E&E - Greenwire
By Kevin Bogardus
Sens. James Lankford (R-Okla.) and Heidi Heitkamp (D-N.D.) today launched a new webpage to take comments from citizens and businesses that are struggling with federal regulations. -
Industrial Energy Users Push for Expanded Electric Choice in Mich.
Mar 26, 2015 | E&E - Energywire
By Jeffrey Tomich
A group representing some of Michigan's largest industrial energy users urged legislators yesterday to allow greater participation in the state's retail electric choice program. -
Policy Integrity's Revesz Says Government in Strong Standing Following Supreme Court Arguments on EPA Mercury Rule
Mar 26, 2015 | E&E - TV
U.S. EPA's cornerstone Mercury and Air Toxics Standards (MATS) were back in court this week. After being upheld by the U.S. Court of Appeals for the District of Columbia Circuit last year, oral arguments were heard by the Supreme Court yesterday. -
Larry Tribe and Mitch McConnell’s Flagrant Constitutional Error
Mar 26, 2015 | PoliticoPro
By Jody Freeman and Richard J. Lazarus
When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. -
Senate Republicans Press White House to Yank NEPA Guidance on GHGs
Mar 26, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Six GOP senators today urged the White House Council on Environmental Quality to abandon its draft guidance for considering greenhouse gas emissions in National Environmental Policy Act reviews of major projects and federal land management. -
Skeptical Judges Question Industry Assault on EPA's Carbon Capture Rule
Mar 26, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Federal judges were skeptical today of an industry challenge to U.S. EPA's determination that carbon captured from power plant emissions and injected underground qualifies as a "solid waste." -
Democrats List Climate Amendments to Budget Bill
Mar 26, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Senate Democrats today outlined a list of climate-related amendments they plan to file to the budget bill. -
Elizabeth Southerland: Providing the Science to Keep the Nation’s Water Safe for Drinking, Swimming and Fishing
Mar 26, 2015 | The Washington Post
By Partnership for Public Service
As new chemicals enter the marketplace and often end up in the nation’s waterways, Elizabeth Southerland’s office at the Environmental Protection Agency produces the research that the agency uses to set water-pollution limits. -
Export Ban's Financial Impact to U.S. Producers Has Been Understated -- Study
Mar 26, 2015 | E&E - Energywire
By Jenny Mandel
The U.S. crude export ban is taking a larger pinch out of domestic oil producers' wallets than a quick look at the benchmarks shows, according to a study that factors in the price premium for light, sweet crude to calculate costs. -
Wyoming is First State to Start Fracking MOU Talks
Mar 26, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
The Bureau of Land Management on Wednesday began talks with the state of Wyoming to enter into a memorandum of understanding over aligning state regulations and the federal government’s newly finalized fracking rule, BLM Director Neil Kornze told lawmakers at a Natural Resources Committee hearing today. -
GOP Dings Interior Fracking Rule
Mar 26, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
House Republicans today slammed the Interior Department’s new rule governing fracking on federal lands. -
Fracking Moratoriums Pass in Both Md. Chambers
Mar 26, 2015 | E&E - Energywire
The Maryland House of Delegates and the state Senate passed legislation that would forbid drilling for natural gas in the state's western portion for three years and hold drilling companies financially accountable if things go awry. -
SAB Panelists Press EPA For Policy Context Of Biomass Carbon Framework
Mar 26, 2015 | InsideEPA
By Dawn Reeves
Several members of EPA's Science Advisory Board (SAB) panel are urging the agency to describe the specific policies to which the agency will apply its revised draft framework for estimating greenhouse gas (GHG) emissions from biomass energy, saying the agency's generic, policy-agnostic approach makes it difficult to offer advice on the draft. -
EPA Nears Designating Dozens More Areas In SO2 NAAQS 'Nonattainment'
Mar 26, 2015 | InsideEPA
By Stuart Parker
EPA is moving toward designating dozens more areas in "nonattainment" with its sulfur dioxide (SO2) national ambient air quality standards (NAAQS), as the agency seeks to meet court-ordered deadlines for completion of its severely delayed designation process with a reliance on air quality modeling that many states contest. -
Dems Intensify Fight for Oil Train Regulations
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama and Keith Laing
Senate Democrats unveiled an effort Wednesday to expand the scope of forthcoming regulations on trains carrying crude oil, countering a push from business groups to soften the rules. -
Crude-by-Rail Bill Would Pull Thousands of 'Unsafe' Cars Off the Tracks
Mar 26, 2015 | E&E - Energywire
By Blake Sobczak
Four Senate Democrats have unveiled a bill to take nearly 40,000 "unsafe" tank cars off the tracks following a series of recent oil train derailments. -
Washington Pushes for Holistic Response to Rail Accidents
Mar 26, 2015 | Pittsburgh Post-Gazette
By Daniel Moore
U.S. railroad and energy companies joined Congressional lawmakers and environmentalists on Wednesday in calling for a more comprehensive response to a string of fiery derailments of trains carrying crude oil. -
Railroads, Energy Industry Offer New Crude-by-Rail Safety Course to First Responders
Mar 26, 2015 | Progressive Railroading
A new crude-by-rail safety course designed for emergency response organizations and fire departments was unveiled by the Association of American Railroads (AAR) and the American Petroleum Institute (API) yesterday.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Energy and Environment News
Transportation News
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(ACC Mentioned) US EPA Proposes Reporting Rules for Nanomaterials
Mar 26, 2015 | Chemical Watch
The US EPA is proposing reporting and recordkeeping requirements for nanomaterials in the marketplace, a move the agency says will help its continuing evaluation of the substances, “informed by available scientific, technical and economic evidence.”
Companies that manufacture, import or process the substances would have to electronically report:
specific chemical identify;
production volume;
methods of manufacture and processing;
exposure and release information; and
available data on environmental and heath effects.
The agency currently reviews new nanomaterials before their introduction to the marketplace. For the first time, it is now using its authority under section 8(a) of the Toxic Substances Control Act to collect existing exposure and health and safety information on nanomaterials in commerce. The proposed rule requires one-time reporting for both existing substances and new discrete nanomaterials before they are manufactured or processed.
The agency makes clear that under the proposed rule it is neither concluding, or intending to conclude, that “nanoscale materials as a class, or specific uses of nanoscale materials, necessarily give rise to or are likely to cause harm to people or the environment.” Rather, it would use the information it collects to decide if any further action under TSCA – including more information collection – is needed. It adds that it intends to make conclusions on the basis of specific scientific evidence, and that any potential future restrictions on nanomaterials would be “tailored to protect against the specific harms identified for individual substances or categories”.
In addition, the agency says it is not proposing to use the information collected under the rule to publish an inventory of nanomaterial substances. However, it will make non-confidential information available on its online ChemView database. It will take public comment on the proposed rule for 90 days from its publication in the Federal Register, and also hold a public meeting during that period.
The American Chemistry Council's Nanotechnology Panel is particularly interested in how EPA defines the nanomaterials to be covered by the proposed rule. Jay West, the panel's manager, says that it will also be looking for the EPA’s plans to "leverage existing information and for consistency with the work done under the Nanotechnology Plan of the Canada-US Regulatory Cooperation Council”.
“It is a good step forward on the part of the EPA to collect as much information as they can about nanomaterials before they start establishing additional testing that may not provide any additional answers with regard to safety,” John DiLoreto, head of the Society of Chemical Manufacturers and Affiliates' Nanotechnology Coalition.
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Automotive, Electronics Trade Bodies Prefer Bipartisan TSCA Bill
Mar 26, 2015 | Chemical Watch
By Leigh Stringer and Dinesh Kumar
Two leading US electronics and automotive industry associations are backing a bill which includes strong federal powers, instead of its rival which gives more power to state governments.
The Alliance of Automotive Manufacturers (AAM) and the Consumer Electronics Association (CEA) say they favour the bipartisan Vitter-Udall senate bill (10 March 2015) over the alternative Boxer-Markey bill (CW 13 March 2015), which allows states to maintain rights to enforce restrictions on chemicals.
Under the bipartisan bill, state regulations on chemicals would stand only if they were enacted before 1 January 2015. The legislation would also block states from restricting a chemical if the federal EPA adopted the same substance for assessment as a priority chemical.
In a statement to Chemical Watch, the Alliance of Automotive Manufacturers said automakers support a single national chemical management programme, and do not view the Boxer-Markey bill as a “viable alternative” to TSCA reform. By eliminating the pre-emptive effect of federal action, this legislation “virtually ensures that chemical regulation in the US will be inconsistent”, said the alliance.
By contrast, it said, “it appears that the Vitter-Udall compromise legislation will facilitate a more cohesive federal approach to chemical regulation; one that equally protects the health and safety of all Americans.”
Addressing the pre-emption clauses in both proposals, Walter Alcorn, CEA vice president of environmental affairs and industry sustainability, said the Boxer-Markey bill proposes a “patchwork” of different restrictions incompatible with a single market approach.
“We would much prefer a unified regulatory approach,” he said. “It is not complete in the compromise bipartisan measure, but it would go a long way to ensuring that these questions are dealt with on a national basis and not state-by-state.” He added that the EPA is more qualified to make decisions on chemicals than states. “They really should be making those calls and we support that.”
Major electronics companies Dell and Hewlett-Packard said that it was too early to foresee the effect a reformed TSCA would have on their companies but both say they are actively monitoring and assessing the potential impact.
Dell’s European environmental affairs manager, Markus Stutz, told Chemical Watch that while most electronics manufacturing is outside the US, any restriction on articles that could potentially come out of a revised TSCA may affect the company. “However, that is unlikely at the moment,” he added.
Meanwhile, the US Retail Industry Leaders Association (Rila), whose members include Walmart, Target and Nike, declined to comment on the bills because it is still in the process of reviewing the legislation with its member companies.
This week, the California Environmental Protection Agency came out supporting the Boxer-Markey bill, and said the bipartisan proposal “presents an immediate threat” to the state’s Safer Consumer Products Regulations (CW 24 March 2015).
The Companies for Safer Chemicals coalition, which is coordinated by the American Sustainable Business Council (ASBC), a network of business associations promoting a sustainable economy, has also backed the Boxer-Markey proposals (CW 19 March 2015).
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Mar 25, 2015 | Huffington Post
By Bill Couzens
Senate bill S.697, legislation to reauthorize and modernize the Toxic Substances Control Act (TSCA), will create stumbling blocks for states that wish to protect their citizens and their families from harmful chemicals. In my opinion, this bill is not unlike asking residents across the country to rely on first responders from Washington, D.C., to respond to their emergency when they call 911. Could you imagine needing the police or fire department and having to call Washington for help? It just doesn't make sense.
Proponents of the proposed legislation will tell you that it is all about creating one rule book -- not fifty-two. Although the idea of one rule book might sound like a solution, in reality this is more of a sound bite rather than anything that would be effective. We must not lose sight of the fact that we are talking about our children and other vulnerable populations, including pregnant women and the elderly. There is little substance in the idea of turning over the supervision and authority of toxic substances and the protection of your family to a government that is off-site.
Today, just as one example, asbestos is still legal in the United States, and you can find it in anything from vinyl flooring to roofing.
According to the World Health Organization (WHO), "Currently, about 125 million people in the world are exposed to asbestos at the workplace. According to the most recent WHO estimates, more than 107, 000 people die each year from asbestos-related lung cancer, mesothelioma and asbestosis resulting from exposure at work. Approximately half of the deaths from occupational cancer are estimated to be caused by asbestos. In addition, it is estimated that several thousand deaths annually can be attributed to exposure to asbestos in the home." WHO goes on to say, "It has also been shown that co-exposure to tobacco smoke and asbestos fibres substantially increases the risk for lung cancer - and the heavier the smoking, the greater the risk."
Author of a World Without Cancer, physician, and Less Cancer board member Margaret I. Cuomo, MD addresses the issue of toxic substances and their effects on cancer: Dr. Cuomo writes in her book: "Almost 80,000 chemicals are sold in the United States, and we are exposed to many of them on a daily basis. We know with alarming certainty that some of these cause cancer, but most remain unexamined and unregulated."
Cuomo continues, "For the most part, we now regulate chemicals by allowing them to be used, and then reacting if evidence of a problem accumulates. Requiring manufacturers to prove their products safe before marketing them would be a huge step forward in making a prevention-oriented commitment."
Also in Cuomo's book: In 2010, the President's Cancer Panel appealed directly to the President: "The Panel urges you most strongly to use the power of your office to remove carcinogens and other toxins from our food, water and air that needlessly increase health care costs, cripple our Nation's productivity and devastate American lives."
It is now 2015, and nothing has changed at the federal level to protect American consumers. That is why statewide initiatives are essential, and why we should all support our state's ability to protect us. "
You can see this is not about choosing options, but rather about doing all we can to shield ourselves from the risk of harmful chemicals on behalf of the public both on the national and state level.
On May 20, 2015, New York state will be hosting its first Cancer Prevention Summit in Manhattan to address some of these toxic-substances issues. Nationally, the closest effort on that front is National Cancer Prevention Day, that Less Cancer founded on February 4th as a working day on Capitol Hill. The day addresses issues on cancer prevention that include this important topic of toxic chemicals.
New York is a leading force in chemical reform. According to SaferStates.com:
New York State ranks third in the nation in population and economy. Its children face significant health problems related to chemicals in the environment: Asthma incidence has tripled in the past three decades, and now affects a quarter of a million New York children. Over 180,000 New York children have a learning disability, and more than 660,000 have a developmental or behavioral disorder. Lead poisoning affects 2,200 children each year. Conservative cost estimates to New York of diseases of environmental origin are $4.35 billion annually. To address these concerns, New York has been a leader in laws to remove toxic chemicals from common products, including passing bans on mercury in products, PBDEs in products, the first in the nation ban on the carcinogenic flame retardant TCEP and leading bans on BPA in baby bottles in four counties and then statewide.
Another leader on this front is the state of Washington, saferstates.com reports:
Washington State is a leading force in the nation on toxic chemicals: Washington passed a first-in-the-nation ban on the toxic flame retardant deca (PBDE) that inspired chemical manufacturers to work with EPA and voluntarily phase out PBDE production nationally. WA passed a ban on the use of hormone-disrupting BPA in baby bottles -- helping build momentum that resulted in the FDA taking up the ban at the national level in 2012. Washington passed the strongest ban in the nation on lead, cadmium and phthalates in children's products, inspiring passage of a federal ban.
One other bill is coming: bill number S.725. This bill would amend the Toxic Substances Control Act. Sponsored by Sen. Barbara Boxer (D-Calif.) and cosponsored by Sen. Ed Markey (D-Mass.), Sen. Bernie Sanders(I-Vt.), Sen. Richard Blumenthal (D-Conn.) and Sen. Kirsten Gillibrand (D-N.Y.), it would provide stronger federal consumer protections without overriding state laws.
The good news is that there are some states working in a multitude of ways to protect their citizens, and there's a growing movement to do more on the state level. Those states' efforts must be preserved, and we certainly want to protect their rights to develop laws that will serve and protect their citizens.
States are doing important work to protect citizens from harmful chemicals. In California, for instance, The Safer Consumer Products reports; that the program strives to reduce toxic chemicals in products consumers buy and use. The website for Toxic Substance Control highlights its program:"It identifies specific products containing potentially harmful chemicals and asks manufacturers to answer two questions: 1) Is this chemical necessary? 2) Is there a safer alternative?
The program requires manufacturers to conduct a thorough analysis of alternatives to make sure they don't pose environmental or health problems. The result is that consumers will confidence that the products they buy are safe for their families and the environment.
An explanation of the program can also be found on the site:
The Department of Toxic Substances Control's (DTSC) Safer Consumer Products regulations take effect October 1, 2013 and will be phased in over the next several years to coordinate with the timing of the various regulatory requirements according to its website.
'The goals of this program are to reduce toxic chemicals in consumer products, create new business opportunities in the emerging safer consumer products economy and reduce the burden on consumers and businesses struggling to identify what's in the products they buy for their families and customers.'
To accomplish these goals, the SCP Program will rely on reports submitted by responsible entities, such as the manufacturer, to inform and increase the use of safer chemicals in products, homes, schools and workplaces, which produce significant environmental and economic benefits.
By shifting the question of an ingredient's toxicity to the product development stage, concerns can be addressed early on. The approach results in safer ingredients and designs, and provides an opportunity for California industry to once again demonstrate its innovative spirit by making products that meet consumer demand throughout the world.
So where do you start? There is little to nothing to preclude states from taking action to protect citizens from toxic chemicals as we have seen in California, Washington, Vermont and New York are doing to protect the public. You can find out more at SaferStates.com.
We cannot do enough to protect our families from the effects of harmful chemicals. While politicians in Washington, D.C., try to enact new legislation, you can be engaging state lawmakers where you live to determine a positive course of action in protecting your family and community.
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Review Finds Bisphenol F and S Effects Similar to Bisphenol A
Mar 26, 2015 | Chemical Watch
A review of recent papers on the hormonal activities of bisphenol F (BPF) and bisphenol S (BPS) concludes that most demonstrate the compounds have similar potency and hormonal properties to bisphenol A (BPA). The research was published in the journal Environmental Health Perspectives by scientists from the Endocrine Disruption Exchange in Colorado.
Authors Johanna Rochester and Ashley Bolden found 1,370 studies, of which 32 were identified as relevant – very few compared with BPA. Twenty five of these were in vitro and only seven were in vivo.
However, both compounds, which are widely used as substitutes for BPA, showed oestrogenic, anti-oestrogenic, androgenic and anti-androgenic properties, the authors say.
BPS and BPF appear to have similar metabolism, potencies, and mechanisms of action as BPA and may pose similar potential health hazards, the review concludes. Future research efforts to find substitutes for BPA should focus on compounds which do not have similar structures and hormonal activity.
Recently published papers by Swiss and German researchers have also concluded that BPF and BPS have similar health effects to BPA (CW 22 January 2015).
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Obama to Ask Chemical Agency Chief to Resign, Lawmakers Say
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
House lawmakers say President Obama is asking the embattled chairman of the Chemical Safety Board (CSB) to step down.
Rafael Moure-Eraso’s departure from the agency would come after months of pressure from Congress, where members of both parties have accused him of breaking the law, being an ineffective and hostile leader and retaliating against whistleblowers.
Spokesmen for Obama and Moure-Eraso did not respond to requests for comment Wednesday night. But CNN confirmed the news, citing congressional sources.
Leaders of the House Oversight Committee, who have been calling for Moure-Eraso to resign since at least June, welcomed the news.
“The Chemical Safety Board is in desperate need of new leadership and we are pleased that the president has recognized the importance of making key changes within the Chemical Safety Board,” the panel's leaders, Reps. Jason Chaffetz (R-Utah) and Elijah Cummings (D-Md.), said in a joint statement.
“Dr. Moure-Eraso’s mismanagement of the CSB, abuse of power, employee retaliation, and lack of honesty in his communications with Congress are among the many reasons why his resignation is the right next step for this federal agency,” they said.
In recent weeks, top Republicans in the Senate and 14 members of the House Oversight Committee from both parties have asked for Moure-Eraso’s removal. The House lawmakers went so far as to ask Obama to fire him.
The calls for his resignation came after a trio of Oversight Committee hearings gave attention to allegations that he had retaliated against whistleblowers, illegally used private email accounts for official work, lied to Congress and created a hostile workplace that is now ranked as one of the worst places to work in the government.
Moure-Eraso has admitted to some fault, but has refused to step down and blamed colleagues for some of the CSB's problems.
Moure-Eraso’s term at CSB expires in June, and Obama has nominated Vanessa Sutherland, an attorney at the Pipeline and Hazardous Materials Administration, to replace him.
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House Dem Hopeful About Senate Cyber Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Elise Viebeck
The co-chairman of the House Cybersecurity Caucus said he is hopeful about the Senate Intelligence Committee’s threat-sharing bill, though he has not seen a final version.
Rep. Jim Langevin (D-R.I.) said he’s been told that the final bill goes “pretty far” in protecting privacy and civil liberties, though “nothing is ever perfect.”“We need to monitor that,” Langevin said at a Bloomberg Government event on Thursday. “I think that we’re going to get to a very good place on privacy and civil liberties.”
Langevin’s tentative positivity about the Senate bill comes as privacy advocates remain disappointed.
While the Senate Intelligence Committee passed 12 privacy-related amendments during its markup, advocacy groups said the changes did little to improve the bill’s consumer protections. It passed 14-1 out of committee and is supported by major business groups.
The Cybersecurity Information Sharing Act (CISA) would give companies liability protection when they tell the government about the cyber threats they face.
Greater collaboration between law enforcement and the private sector is seen as crucial for defending the United States against hacking attempts, though lawmakers disagree about the best terms for a deal.
Langevin said he has “high confidence” that a threat-sharing bill will be enacted this year, particularly once Congress deals with the reauthorization of the Patriot Act and accompanying reforms in May.
“Once that is dealt with clearly and definitively, I think it’s going to clear the deck for allowing some more of this information-sharing legislation [to pass],” he said, noting a desire among some Democrats to deal with reforming the Foreign Intelligence Surveillance Act first.
“Whatever [threat-sharing] bill passes,” he added, “it is still going to have to go through conference committee. That will happen just after or simultaneously with the Patriot Act.”
Langevin also predicted that a data breach notification bill will pass this year. -
House Dem to Introduce Separate Data Breach Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Elise Viebeck
A co-chairman of the House Cybersecurity Caucus is planning to introduce a data breach bill that would not create federal security standards for private companies.
Rep. Jim Langevin (D-R.I.) announced that he will release two cyber-related measures on Thursday: one to require companies to disclose data breaches to affected customers within 30 days of discovery, and another to establish a cyber-related office within the executive office of the president.
Langevin’s data breach notification measure will compete directly with legislation approved Wednesday by the Energy and Commerce Subcommittee on Trade.
That bill, from Reps. Marsha Blackburn (R-Tenn.) and Peter Welch (D-Vt.), would require companies to inform affected customers of a data breach within 30 days once the networks are secured.
The Data Security and Breach Notification Act would also require companies to maintain reasonable security practices.
Langevin said Thursday that he believes data security should continue to be regulated at the state level.
“The states have done a pretty good job of defining and putting in thorough requirements on data security,” the Rhode Island Democrat said at an event hosted by Bloomberg Government.
“So I want to leave that right now with the states. [My colleagues] deal with it more broadly in their bill, and I’m fine with considering that.”
Several key Democrats object to the current draft of the Blackburn-Welch bill because they argue it would pre-empt stronger state data security protections.
Rep. Joseph Kennedy (D-Mass.) offered two amendments during Wednesday’s markup to prevent the bill from pre-empting state data security requirements and pertinent common law. The changes lacked Republican support and did not pass.
The bill appears to be headed for further changes before it is considered by the full Energy and Commerce Committee, and members are likely to debate Langevin’s notification-only approach in the coming days.
The other bill set to be introduced on Thursday would create a point person for the cybersecurity of the .gov domain at the White House. Langevin said the individual would have “policy and budgetary authority” to marshal a whole-of-government effort to protect federal websites. -
House Intel Panel Approves Cyber Bill
Mar 26, 2015 | The Hill - Cybersecurity
By Cory Bennett
The House Intelligence Committee unanimously approved its cyber threat data-sharing bill during a Thursday morning markup.
“We’re off to a great start,” Committee Ranking Member Adam Schiff (D-Calif.) told reporters after the markup. “I think the prospect for successful passage of cyber legislation have gone up dramatically.”
The panel unveiled its bill, the Protecting Cyber Networks Act, earlier this week. The measure grants legal liability protections for companies when sharing cyberattacker information with civilian agencies, such as the Department of Homeland Security (DHS) or Treasury Department.
Committee leaders adopted one manager’s amendment during the markup that incoporated privacy-strengthening suggestions from the White House and seven or eight committee members on both sides of the aisle, said Committee Chairman Devin Nunes (R-Calif.).
“Folks are happy,” he told reporters.
Nunes believes White House support is critical for the bill’s chances.
“We think that we’ve met the concerns that have been raised in the administration and hope that they’ll have a favorable response,” Schiff said Thursday.
The Protecting Cyber Networks Act is one of three major cyber data-sharing bills currently moving in Congress.
The Senate Intelligence Committee approved a similar measure by a 14-1 vote two weeks ago. The House Homeland Security Committee is also expected to markup a bill encouraging companies to share data through the DHS.
All three offerings would authorize liability protections for exchanging cyber threat data with various government agencies.
The issue has been a top legislative priority this year for many industry groups, a bipartisan coalition of lawmakers and many government officials. They argue both the public and private sector need a better understanding of emerging cyber threats to strengthen their defenses.
Previous attempts at moving cyber info-sharing legislation have gotten caught up over fears the bills could embolden the National Security Agency’s (NSA) surveillance capability.
But over the last year, repeated breaches at government agencies, and across the retail and banking sectors have exposed hundreds of millions of Americans’ sensitive data and increased pressure on lawmakers to take action.
A number of Democrats, including Schiff, have come on board to an info-sharing bill, after opposing previous efforts.
“I think that we have done everything possible to meet the concerns of the privacy community apart from those who simply don’t want information sharing in a bill of any kind,” Schiff said Thursday.
Still, many privacy groups have opposed the House and Senate Intelligence committees’ efforts.
But the main barrier to passage could be a logistical one. With three info-sharing bills on the table, it’s not clear how they will all come together.
Nunes and Schiff said they would prefer to combine the two House bills and send one measure to the floor. That could simplify the process of merging the House and Senate’s bills, should they both pass.
“At this point, it’s beyond our pay grade on how this moves forward,” Nunes said.
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(ACC Mentioned) Comment Period on NEPA Climate Guidance Ends with a Bang
Mar 26, 2015 | E&E - Greenwire
By Hannah Northey and Jean Chemnick
Top Senate Republicans yesterday blasted draft guidance on how federal agencies should incorporate climate change into their project reviews as an "illegitimate expansion" of a key environmental law.
Several industry groups also harshly criticized the proposal while environmentalists strongly supported it in comments submitted ahead of last night's deadline for public input on the National Environmental Policy Act (NEPA) document.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) spearheaded aletter to the White House Council on Environmental Quality arguing that the draft guidance to agencies on how to address greenhouse gas emissions in their NEPA reviews went beyond the scope of the law, would retard economic development in a host of ways and must be scrapped.
"Failure to do so will paralyze agency action, including actions needed to create jobs and grow our economy, by requiring endless and meaningless analyses and creating new opportunities for litigation to delay and block important projects," the senators wrote.
The guidance the White House released in December could affect the way federal agencies treat a host of economic activities, from timber operations to energy development to the siting of transmission and pipeline infrastructure that cross federal lands (E&ENews PM, Dec. 18, 2014).
But the EPW Republicans said agencies must consider only the "direct or indirect effect" of a federal action when preparing an environmental impact statement under NEPA. Climate change does not fit either definition, they argued in the letter, because no single project has a "reasonably close causal relationship" to climate change -- a global phenomenon.
The letter also challenged the draft's assertion -- upheld by most climate scientists -- that greenhouse gases and climate change are linked. And it said the draft ignores statutory requirements that there be a "proximate causal connection and agency control over an action's effects before those effects must be considered."
The six senators also echoed comments from natural gas and other industries that the proposal should be changed to give agencies discretion to consider climate change and greenhouse gas emissions as they see fit when applying NEPA -- including the right to ignore them.
"By prohibiting agencies from stating the obvious truth, that individual agency actions could have only a small, if any, effect on the global climate, the draft guidance sends agencies down the rabbit hole of meaningless analysis for each and every action they may take," they wrote.
One of the letter's signatories was Sen. Deb Fischer (R-Neb.), who has filed an amendment to the budget resolution now before the Senate that would prevent the guidance from becoming final. It is not clear yet whether it will receive a vote.
But environmentalists note the purpose of the guidance is to create a uniform policy for how agencies across the government incorporate climate change into NEPA implementation. Currently some agencies consider its effects fully when permitting projects, and some do not.
Increasing agency discretion in the guidance "would defeat the whole purpose," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School and one of the lawyers who first petitioned the George W. Bush administration in 2008 to promulgate the guidance.
"I think that it is extremely important that agencies consider climate change because it is such a pressing issue, so giving them the discretion to ignore it is the ostrich method," he said.
Green advocates and lawyers including Gerrard have long urged the Obama White House to require agencies to consider the effect the projects they permit will have on climate change -- and vice versa.
They were frustrated when CEQ never finalized a previous draft guidance released in 2010. But they lauded changes made in the new version, which solidifies how climate change would be considered in federal land-use decisions and directs agencies to consider the vulnerability of the projects they permit.
The latter has the potential to save taxpayers money, Gerrard said.
"If you're building an airport runway on a coastline, you want to make sure that the runway will still be above water at the end of its useful life," he said. "The NEPA review during the planning process is the perfect time to think about that and has the potential to save the federal government an enormous amount of money."Industry opposition
The oil, gas and power sectors joined manufacturers yesterday in calling on the White House to scrap the guidance, making many of the same points the Republicans did. The language, they said, is too expansive and could drive up the cost of project reviews, trigger delays and even "paralyze" land management programs.
More than a dozen industry groups in a letter yesterday cast the revisions as inconsistent with NEPA, which requires agencies to take a "hard look" at environmental consequences of any major federal action without mandating any particular outcome.
The global, incremental nature of greenhouse gas emissions cannot be tied back to one project under NEPA, and requiring agencies to follow the proposed guidance threatens to transform NEPA from a procedural statute into a "substantive one that directs agencies to adopt alternatives with the lowest GHG emissions," the groups warned.
The Chamber of Commerce, American Public Power Association, National Association of Manufacturers, American Chemistry Council, American Petroleum Institute and National Rural Electric Cooperative Association signed the letter.
The groups also laid out specific revisions they want should the White House decide to finalize the language.
To prevent NEPA reviews that are "boundless," CEQ should clarify that agencies won't be required to consider the international and global effects of emissions, they said. Any final guidance should also impose legal limits on their scope, including the proximate "cause and foreseeability limits" in gauging a project's indirect and cumulative effects, they said.
The groups also raised concerns that the new language -- unlike the original 2010 proposal -- includes land and resource management actions that are already complex in nature. Interest groups opposed to actions such as snowmobiling, timber harvests, and oil and gas development could file lawsuits using NEPA -- and potential impacts related to climate change -- to stall actions they disagree with, the groups warned.
The CEQ guidance drew particular criticism from gas producers, pipeline developers and companies looking to export domestic shale gas.
The Center for LNG warned in a letter to CEQ that the guidance could create ambiguity for developers of export projects, open the door to unnecessary litigation and add regulatory expenses. The group asked for the language to be withdrawn, warning that NEPA reviews, when poorly framed, can add costs, uncertainty and delay.
Joan Dreskin, vice president of regulatory affairs for the Interstate Natural Gas Association of America, in comments to CEQ yesterday also said the draft revisions contradict NEPA law and regulation, past Supreme Court decisions, and agency precedent.
Dreskin argued that issues are required to be "reasonably foreseeable" and "significant" before they're incorporated in NEPA reviews, and there must be a "causal connection and agency control" over an action's effects before it's considered. Climate change, as it stands, doesn't fit into those categories, she said.
"The nature of climate change is such that there is no causal connection -- much less a reasonably foreseeable and proximate causal connection -- between a single project's [greenhouse gas] emissions and a climate change-related effect like sea-level rise," Dreskin wrote.
She also said more than 23,000 miles of large-diameter transmission pipelines must be built in the next two decades to meet an uptick in demand as the EPA's Clean Power Plan and other environmental rules take effect. The United States and Canada together will need to invest $313 billion through 2035 on new pipelines, storage fields, power plants and processing facilities, as well as export-related facilities and equipment, she said.
"Given the projected need for new infrastructure, INGAA is concerned about any policy initiative that might hinder the critical infrastructure necessary to meet market demand for natural gas on a timely and predictable basis," Dreskin wrote.
The National Mining Association, Colorado Mining Association, Tennessee Mining Association and Utah Mining Association said the draft guidance created additional permitting burdens and uncertainty without benefits.
"The NEPA process is already complex and time consuming," their comments said. "CEQ's proposal will merely serve to amplify these problems by directing agencies to consider impacts beyond their statutory authority to address and convey the false impression that reliable analyses can be done on many aspects of climate change."
But Columbia's Gerrard said the very fact that many agencies are already considering climate change and greenhouse gas emissions in their NEPA projects shows the landmark environmental law provides ample authority for all agencies to do that.
Columbia released a study in 2012 showing how various agencies incorporate warming into their NEPA processes.
"It shows that it's feasible to do that, and sensible," he said. Gerrard's comments to the White House reflect that.
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Senators Launch Online Hub to Hear From 'Main Street' on Rules
Mar 26, 2015 | E&E - Greenwire
By Kevin Bogardus
Sens. James Lankford (R-Okla.) and Heidi Heitkamp (D-N.D.) today launched a new webpage to take comments from citizens and businesses that are struggling with federal regulations.
At a press conference, they announced a new portal on the Senate Homeland Security and Governmental Affairs Committee website allowing people to share their stories about regulations.
The senators have already been collecting tales from their constituents back home that have run up against government rules and are asking for more to weigh in.
The two signed onto a letter sent last week to several organizations and companies asking them to spotlight problematic regulations (E&E Daily, March 19). Both Lankford and Heitkamp have participated in hearings, including one held by the Homeland Security and Governmental Affairs Committee last month, where they heard testimony from experts about creating a central venue to collect complaints about regulations (E&E Daily, Feb. 26).
The senators said the new webpage provides that venue. Lankford said complaints about a rule have to be directed to the agency that issued the rule, but that most people don't know what agency to turn to.
"People don't get up every morning and read the Federal Register. They don't know where it's coming from," Lankford said.
Lankford and Heitkamp are chairman and ranking member, respectively, of the Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management.
The senators noted that they often hear from trade group lobbyists about specific regulations, but they wanted to cast the net further to reach people unfamiliar with politics and government.
"When does that Main Street get to weigh in? So I like to think of this initiative as an opportunity to hear from K Street but also from Main Street on what those regulatory burdens are," Heitkamp said.
Heitkamp stressed that federal rules are necessary, such as protections for water and food, but said the initiative is to help identify inefficient regulations.
"We aren't here to criticize all regulations. Far from it," Heitkamp said.
Lankford emphasized that regulatory reform can move forward on Capitol Hill due to the growing frustration over onerous rules.
"We have wide agreement on a lot of these areas. Again, it's not a Republican or a Democratic area. It's a bureaucracy area, and quite frankly, I meet a lot of folks that are in the bureaucracy that also have an equal amount of frustration," Lankford said.
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Industrial Energy Users Push for Expanded Electric Choice in Mich.
Mar 26, 2015 | E&E - Energywire
By Jeffrey Tomich
A group representing some of Michigan's largest industrial energy users urged legislators yesterday to allow greater participation in the state's retail electric choice program.
Robert Strong, an attorney for the Association of Businesses Advocating Tariff Equity (ABATE), testified before the House Energy Policy Committee. He said higher-than-average electricity prices in Michigan are costing the state millions of dollars and stifling job growth.
"We don't have competitive rates today under our regulatory scheme," Strong said. "It puts Michigan at a disadvantage."
Yesterday's hearing furthers an ongoing debate over the future of the state's hybrid electric choice program that allows 10 percent of a utility's retail load to switch to alternative providers. Within the past month, three Republicans have advanced three very different proposals about how to move forward.
The chairman of the House committee, Rep. Aric Nesbitt, earlier this month proposed doing away with the state's electric choice program (EnergyWire, March 12). Gov. Rick Snyder (R) wants to leave the cap in place and adjust rules requiring alternative energy suppliers to demonstrate they have adequate generating capacity (EnergyWire, March 16).
This week, state Sen. Mike Shirkey (R) filed a bill that would allow thousands of utility customers in the queue the ability to switch electric providers immediately. It would further lift the cap on participation in subsequent years.
Utilities argue that Michigan's choice law doesn't provide the certainty needed to stimulate investment in new generation. A survey by the Midcontinent Independent System Operator, the regional grid operator, said there could be a 3,000-megawatt shortfall in Michigan's Lower Peninsula as soon as 2016 because of the retirement of coal-fired power plants.
Strong said members of the industrial group would collectively lose $35 million by taking service from monopoly utilities.
ABATE's members include Ford Motor Co., General Motors Co., Chrysler Group LLC, Dow Chemical Co. and Alcoa Inc. The group was formed more than 30 years ago to represent the interests of large industrial customers before the Michigan Public Service Commission and the Federal Energy Regulatory Commission and in legal matters. Its members employ more than 127,000 people in Michigan with a payroll in excess of $3.4 billion.
Strong said the group as a whole supports lifting the cap on retail choice, though some of its individual members may not.'Very instructive' lesson in choice
A December 2014 report by the Michigan PSC cited more than 11,000 customers of DTE Electric and Consumers Energy in the queue to switch electric providers, roughly doubling the number of customers who take service from an alternative provider today.
Strong said the trend in Michigan retail rates is proof that electric choice is effective at driving out unnecessary costs.
Michigan's retail electric rates were higher than the national average before 2000, when the choice law was approved. Rates fell below the national average when retail restructuring was implemented. They rose above the average only when the 10 percent cap was put in place.
"I think this is very instructive," Strong said.
Today, he said, the price offered by competing suppliers is $25 per megawatt-hour below what the utilities offer, representing a potential savings of $290 million a year if customers in the queue were allowed to switch energy providers.
Lifting the cap would also benefit customers that remained with the utility by eliminating the need to build or buy new generation.
Strong dismissed concerns raised last week by critics of the Michigan choice law -- that the system failed to incentivize new generation and threatened reliability (EnergyWire, March 19).
MISO is responsible for ensuring reliability across its regional footprint, which includes most of Michigan, and it will do so regardless of whether customers are served by rate-regulated utilities or alternative providers, he said.
"The only thing that really changes is the financial responsibility for that load," Strong said.
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Mar 26, 2015 | E&E - TV
U.S. EPA's cornerstone Mercury and Air Toxics Standards (MATS) were back in court this week. After being upheld by the U.S. Court of Appeals for the District of Columbia Circuit last year, oral arguments were heard by the Supreme Court yesterday. The question before the court is whether EPA should have considered costs before moving forward with its MATS rule. During today's OnPoint, Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, assesses the arguments presented and questioning by the justices. He also comments on Harvard Law School professor Laurence Tribe's constitutional arguments against EPA's Clean Power Plan.Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law. Nice to see you again.
Richard Revesz: Thank you. It's great to be here.
Monica Trauzzi: So, Ricky, EPA's Mercury and Air Toxics Standard was back in court this week, and this is a cornerstone regulation for the Obama administration, upheld before the D.C. Circuit, and this week the Supreme court heard oral arguments on the rule. The question before the court is whether EPA can regulate emissions, mercury emissions, from power plants without first considering cost. Overall, how did the government do and how did industry do?
Richard Revesz: I think the government did very well. The actual question is whether EPA can decide that the toxic air pollutant emissions from power plants can be regulated without considering cost. The costs then do get taken into account in deciding the stringency of the regulation.
Monica Trauzzi: But that happens later in the process.
Richard Revesz: It happens after -- yes, it happens after the agency decides that power plants should be regulated. Um, I thought the argument went well. The justices were very well-prepared, very well-informed, asked probing questions. I thought that during the course of the argument, they came to understand some of the issues better, which is what oral argument should be about, and I had the sense that the center of gravity of the court shifted in the government's favor during the hour and a half of oral arguments.
Monica Trauzzi: So the court, it's reported, appeared divided on the case. Justice Kennedy is considered to be a swing vote. What points did he specifically make? What stood out to you about the things that he was saying?
Richard Revesz: I thought he was trying to grapple with the same issues that the other justices were -- to what extent were costs considered in setting the stringency of the standard, to what extent could costs be considered at a later time. There were questions about how this process works at all mechanically. The chief justice who also, I think, is a vote that we should be watching, was concerned about whether the agency had -- whether the interpretation that the solicitor general attributed to the agency was an interpretation the agency had actually used in its regulatory proceeding, which it should use, and I thought that the solicitor general and also Paul Smith, who was representing some clean energy companies, defending the rule, made some very good points about how the process of considering costs at the second stage worked.
Monica Trauzzi: So in the D.C. Circuit, Justice Kavanaugh and his dissenting opinion said, with a rule that's potentially so burdensome and wide-ranging in scope, cost must be considered. Do you see a pathway in which the court would adopt this opinion?
Richard Revesz: I think it's unlikely, and the reason is this. It's not clear what taking costs into account at that first stage would even mean or how it could be done, and I think that's one of the reasons EPA didn't do it. Because the costs are going to depend a lot on the stringency of the rule. And the way this regulatory process works is that EPA has to set standards that are at least as stringent as what 12 percent of the sources in a category are already meeting. But how stringent that is depends on what the category is, and EPA has the authority to subcategorize sources, as it did in this case. And until it's done that, it's not clear how can you figure out what the costs are. And the subcategorization has to happen at a later time, after EPA has decided that power plants should be regulated. That came across by the time the oral argument was over. There was confusion at first, but eventually it came across.
Monica Trauzzi: So you think there's some wiggle room in how EPA has read and interpreted the statute.
Richard Revesz: Well, absolutely. Absolutely. I mean, first, the statutory language, or what's being interpreted here is appropriate and necessary. And the question that the challengers were presenting was they argue that appropriate and necessary meant the EPA was required to take costs into account. The government's position is that appropriate and necessary doesn't answer that question and that EPA has discretion on this issue and that EPA properly decided not to do so. The Supreme Court has never said that, in the face of statutory silence and costs, that costs have to be taken into account. It's decided three cases on this issue in 15 years, and one it said that silence meant you cannot take costs into account, and in two cases it said discretion to EPA.
Monica Trauzzi: So the court here, this is a big case.
Richard Revesz: Yes.
Monica Trauzzi: I mean, the court has --
Richard Revesz: Huge.
Monica Trauzzi: Yes. For us, for folks like us. The court here has the opportunity to influence the future of air regulation. So was there anything from the arguments and the questions asked by the justices on how they may skew on future Clean Air Act cases?
Richard Revesz: You know, I don't think that this case -- even though -- this case is very important because these are very harmful pollutants, and power plants are, by far, the largest emitters of these very harmful pollutants, so this is a very important case which will make a big difference to our environment. But in terms of legal precedent, it's a kind of one-time-only case because it only affects power plants, it only affects the listing of power plants, and that is done only once. And actually the challengers were arguing that there was something special about this appropriate and necessary formulation, which doesn't appear in a lot of other parts of environmental law, so I think this case is very important for its environmental consequences, and maybe a little less important for its precedential consequences.
Monica Trauzzi: So switching topics before we close, you recently testified before a House Energy and Commerce subcommittee on the Clean Power Plan. Harvard Law professor Laurence Tribe was also there and testified. He pushes, along with many powerful members of Congress, the idea that the power plan is not legally sound, that it's unconstitutional. What do you make of this argument by Tribe? He's a constitutional scholar.
Richard Revesz: He is a constitutional scholar, and he's making three distinct constitutional arguments -- a federalism argument, a taking of private property argument and a non-delegation argument, an argument that the agency's taking over Congress' lawmaking authority. None of these three arguments is at all plausible. And I don't think these arguments are being made for their plausibility in the courts. I think they're being made in order to influence the political process, and it's giving opponents of the Clean Power Plan in Congress cover to go out into the country and tell governors you don't need to come up with implementation plans because as eminent the person, as Professor Tribe has said, that these provisions are unconstitutional. There is no plausible claim that Tribe is right. These are not -- whatever may be the issue with the Clean Power Plan is not unconstitutional, and it's not unconstitutional on any of the three grounds that Tribe attributes to it.
Monica Trauzzi: So legally, you don't think states have that option to just say no. They don't have the legal cover.
Richard Revesz: States actually have the option not to come up with a plan. I mean, it would be very silly to do that because they lose a lot of flexibility the plan gives them, but if they decide not to come up with plans because they believe the law might be unconstitutional, they will have been misled.
Monica Trauzzi: All right. We'll end it there on that note. Thank you for coming on the show.
Richard Revesz: Thank you. It's great to be here.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
[End of Audio]
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Larry Tribe and Mitch McConnell’s Flagrant Constitutional Error
Mar 26, 2015 | PoliticoPro
By Jody Freeman and Richard J. Lazarus
When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. First, as the headlines pointed out, it’s a dramatic moment when a congressional leader openly tries to rally the states against a new federal policy. And second, McConnell’s legal justification relies on none other than Laurence Tribe—Barack Obama’s former law professor, and one of the nation’s top liberal law scholars—to argue that the upcoming EPA rules are unconstitutional.
As a matter of Kentucky politics, McConnell’s move makes a certain sense. The American power industry is watching the EPA’s carbon-reduction scheme with anxiety. Expected to arrive in final form this summer, the rules will set standards for greenhouse gas emissions from coal-burning plants for the first time. It’s not surprising that a Senate majority leader from a coal state would lead the fight against a new policy that he has characterized as devastating for his home industry. As a matter of national politics McConnell’s step is shrewd, too: He is using this issue to unite Republicans against one of the President’s signature initiatives.
Legally, though, it’s his second move that is more interesting—and potentially more dangerous for the governors who heed it. With Larry Tribe providing the legal backing, McConnell claims the President’s plan is flagrantly unconstitutional. Having Tribe on his side is a coup for the Senate leader. Tribe was an enthusiastic supporter of Obama’s campaigns for President, worked at the Department of Justice during the first term and has been often described as the President’s “mentor.” Which is to say: if you are looking for legal gravitas, and you want to stick it to the President, Tribe is a huge “get.”
But is he right? Larry Tribe is a top constitutional scholar, and a Harvard colleague we greatly respect, but decades of precedent and a close look at the rule suggest he’s completely wrong here.
Tribe’s argument—which he has outlined in comments to the EPA, congressional testimony and an opinion piece in the Wall Street Journal—is that the EPA rule would amount to an unlawful “taking” of the coal industry’s private property, trample on states’ rights, and violate the separation of powers. Tribe spares no rhetorical expense here: he likens the EPA’s rule—intended to cut carbon pollution by up to 30% by 2030—to President Truman’s seizing of the steel mills during the Korean War and President Lincoln’s suspension of habeas corpus during the Civil War. The President’s Clean Power Plan, he says, is “burning the Constitution.”
Some of the theatricality of Tribe’s language makes more sense when you realize that he’s a paid counsel for one side here. Peabody Coal hired him to zealously represent its interests in federal court, and to argue the coal industry’s case in any other forum that might advance its cause, as he has done in Congress and the media.
But Tribe is also a serious constitutional law scholar, and his arguments deserve to be addressed seriously.
Although the EPA is still finalizing the rule, we already know how it is likely to work: the EPA will set carbon intensity targets for each state, and the states can meet these targets using whatever measures they prefer. The targets vary from state to state, depending on their current energy mix; some coal heavy states, including Mitch McConnell’s state of Kentucky, have far less ambitious targets than states with a cleaner energy supply. If states decline to draft their own reduction plans and file them with the EPA, the agency will draft a federal implementation plan itself.
In his legal attack on the rule, Tribe first claims that the new rule would be a form of “taking,” barred by the Fifth Amendment—that the government is essentially seizing the property of power and coal companies without compensation. This is because such regulation, in his words, “drastically undercuts investment-backed expectations that amount to property interests.”
Tribe also argues that the rule would put a “gun to the head” of the states in violation of the 10th Amendment, which prohibits the federal government from, as the Supreme Court terms it, “commandeering” state institutions for federal purposes. Finally, he argues that the rule would violate separation of powers by usurping the role of both Congress and the judiciary.
The takings argument, for one, has no foundation. In 200 years of precedent, there is not a shred of support for Tribe’s notion that it can be a “taking” when the government regulates industry to prevent harms to the public health or welfare, by, for example, emitting dangerous pollution, like greenhouse gases. The Supreme Court has repeatedly made clear that the Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. Tribe is right that the Constitution protects “reasonable investment-backed expectations,” but there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare, as the Court has repeatedly said. And the notion that this rule regulates coal out of existence, as both McConnell and Tribe have implied, is false. The EPA projects that coal will still provide over 30% of our electricity in 2030. The independent grid manager for the mid-Atlantic, known as PJM, also modeled a dozen compliance scenarios and in none of them is coal “phased out.”
And what of the 10th Amendment argument? It is a non-starter too. The 10th Amendment protects the states from being forced to use their institutions to implement federal requirements. But the EPA’s federal implementation plan will require only that power plants meet their targets. It will not force the states themselves to do anything. The EPA has no legal authority—none—to force the states to file plans. The agency cannot cut off highway funds, or do any of the other draconian things that serve as the premise of Professor Tribe’s 10th Amendment argument. The proposed rule allows States to step aside and leave the federal government to implement its regulation without any help. By providing states such a choice, the proposal does not “commandeer” the states, and so it cannot violate the 10th Amendment.As for the separation of powers arguments, we will let Tribe’s analogies speak for themselves. No one is seizing control of the nation’s coal mines and power plants, or suspending habeas corpus. The EPA’s rule here is a pollution rule, which, like all pollution rules, will require industry to invest in emission reduction strategies. The EPA is adopting it under a law that Congress delegated to the agency to administer, and which courts have said the agency is entitled to interpret as long as it reads ambiguous provisions reasonably. People can debate the reasonableness of the rule, but to equate it with these two genuine constitutional crises is absurd.
All that said, the rule is not a legal slam-dunk, and there are credible non-constitutional law arguments against the EPA’s view. But the real question is much more pedestrian: whether the EPA has reasonably interpreted its authority to set “performance standards” for existing power plants under the Act. We think the agency has a strong argument to support its interpretation, and an entirely plausible case for deference from the courts, but it is possible judges will disagree.
The challenges to the Clean Power Plan have begun already, even though it is not yet final: Next month, Tribe will argue the case for industry in the D.C. Circuit Court of Appeals. The three-judge panel assigned to this case includes a leading conservative jurist, Judge Brett Kavanaugh, who has voted against the EPA in a series of Clean Air Act cases in recent years. Yet the panel may still reject the challenge out of hand: It is virtually unprecedented for a court to review a rule that is not yet even final and legally effective.
Even if the government wins the first outing next month and convinces the court that reviewing this proposal now is premature, the government would still need to defend the rule once it is final. This legal battle will play out over the next year, at least, and likely for several more. So any declarations of victory by either side next month should be taken with a very large grain of salt.
McConnell is absolutely correct about one thing: States do have a right to opt out of filing compliance plans, just as they had a right not to set up insurance exchanges under the Affordable Care Act. Once the rule comes into force, states that file plans can make the granular choices about which facilities will retire when, and which investments they want to make to generate cleaner energy. They can design carbon-trading schemes, and join with other states to keep costs down.
If states “just say no,” as McConnell urges, then they will trigger a federal plan, which by contrast will likely be a “cookie-cutter” approach not tailored to each state. In that case the biggest losers will likely be in the utility industry, which has the most to gain from states being in charge of their own destiny. Power plant owners would rather deal with states than the federal government, and they stand to benefit the most from the more cost-effective solutions that only states can adopt.
The Constitution is the most powerful document a legal scholar can invoke, and Tribe’s reputation is undeniably impressive. But the EPA rule is not unconstitutional, so his arguments simply can’t be the basis for following McConnell’s advice . The governors face a harder question: whether to file a plan or not, based on what is in their own best interests. Opting out may be self-defeating—states might give up the flexibility to make the requisite pollution cuts their way - but the choice is entirely up to them. And whatever McConnell and Tribe claim, when governors make the decision, they need to understand the real stakes of their choice.
Jody Freeman, a Harvard law professor, served as White House Counselor for Energy and Climate Change in 2009-10.
Richard J. Lazarus, a Harvard Law professor, has represented clients in more than 40 Supreme Court cases, including many raising constitutional claims against environmental laws.
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Senate Republicans Press White House to Yank NEPA Guidance on GHGs
Mar 26, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Six GOP senators today urged the White House Council on Environmental Quality to abandon its draft guidance for considering greenhouse gas emissions in National Environmental Policy Act reviews of major projects and federal land management.
In a letter to CEQ chief Christy Goldfuss, the senators, led by Environment and Public Works Chairman Jim Inhofe, contended that incorporating climate change concerns as part of NEPA would “paralyze agency action … by requiring endless and meaningless analyses and creating new opportunities for litigation to delay and block important projects.“
The CEQ draft guidance has long sparked concerns among Republicans and regulated industries that climate change and greenhouse gases could play an increasingly central role as NEPA is applied to future energy infrastructure, such as pipelines and fossil-fuel development projects. -
Skeptical Judges Question Industry Assault on EPA's Carbon Capture Rule
Mar 26, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Federal judges were skeptical today of an industry challenge to U.S. EPA's determination that carbon captured from power plant emissions and injected underground qualifies as a "solid waste."
The complicated case before the U.S. Court of Appeals for the District of Columbia Circuit relates to EPA's effort to promote carbon capture and sequestration, or CCS, as part of its plan to address climate change.
CCS takes carbon dioxide from power plants and injects it into wells half a mile underground.
The complete process is not currently being used in the United States. To promote it, however, EPA in January issued a rule that exempted the carbon dioxide "streams" -- which are composed of the substance in a partly liquid, partly gaseous state -- from characterization as a "hazardous waste" under the Resource Conservation and Recovery Act, or RCRA, when injected into that type of well. Such a determination would have subjected the streams to regulatory compliance requirements.
In the process, however, EPA determined that the streams do qualify as "solid waste," which requires them to be certified.
Companies that generate the carbon dioxide streams, represented by the Carbon Sequestration Council and backed by the American Petroleum Institute, challenged the "solid waste" finding.
Their interest, however, is only tangentially related to the rule at issue. Carbon dioxide streams are also used in enhanced oil recovery, where they are injected into wells in order to help them produce more oil.
Those types of wells are characterized differently by EPA, referred to as Class I through Class V wells. The CCS wells at issue in the rule are Class VI.
At least two of the three judges on the D.C. Circuit panel were consequently reluctant to believe the challengers had proved they were injured by the EPA's rule. If the challengers could not prove injury, it would mean they lacked standing to bring the lawsuit.
Senior Judge Harry Edwards, a Democratic appointee, repeatedly pressed attorney Thomas Llewellyn.
"I don't see anything with respect to either petitioner that they are using or intending to use Class VI wells," Edwards said.
Chief Judge Merrick Garland appeared to agree, asking Llewellyn, "What's the injury?"
Llewellyn countered that one party in the case, Southern Co., is currently capturing carbon at its Kemper County energy facility in Mississippi. The company, he said, is considering diverting some of those streams to Class VI wells.
The Department of Justice's Michele Walter, representing EPA, argued that the challengers are "overreading" the regulation by suggesting it would apply to their operations at other types of wells.
EPA's rule, she said, is "narrow and circumscribed" and designed to "remove barriers" to using Class VI wells.
She added that she was "trying to understand what their real injury is. ... [EPA was] trying to make this simpler for industries."
A decision in Carbon Sequestration Council v. EPA is expected later this year.
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Democrats List Climate Amendments to Budget Bill
Mar 26, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Senate Democrats today outlined a list of climate-related amendments they plan to file to the budget bill.
Sen. Barbara Boxer will offer one to “respond to the public health impacts of climate change, which are caused by human activity,” according to an unofficial summary. The amendment sounds similar to one from Sen. Bernie Sanders that senators defeatedyesterday.
Sen. Brian Schatz has an amendment “to make clear that climate change is real and the US should lead on solutions.”
Sen. Sheldon Whitehouse has one “to support the regulatory work of the Environmental Protection Agency,” which could be offered alongside an amendment from Sen. Rob Portman or another Republican that would seek to curtail EPA greenhouse gas controls for power plants and potentially other rules under the Clean Air Act. Whitehouse also has an amendment “to provide resources to protect and preserve oceans and coasts, including measures that address the harms caused by human-induced climate change such as ocean acidification, sea level rise, warmer ocean temperatures, and shifting fish and shellfish habitats.”
Sen. Ed Markey is focusing his trio of amendments on repairing and replacing old, leaking natural gas pipelines, slowing down natural gas exports and “improving the safety of offshore drilling, including increasing the liability cap for offshore oil spills.”
The amendments may be considered as part of a marathon round of Senate votes that may last until late into the evening or early tomorrow morning on the non-binding budget bill. -
Mar 26, 2015 | The Washington Post
By Partnership for Public Service
As new chemicals enter the marketplace and often end up in the nation’s waterways, Elizabeth Southerland’s office at the Environmental Protection Agency produces the research that the agency uses to set water-pollution limits.
Southerland routinely meets with state, local, industry and environmental groups concerned about water-quality criteria emerging from her office, which implements major science, technology and regulatory programs under the Clean Water Act and the Safe Drinking Water Act. Evolving pollution standards are aimed at keeping the country’s rivers, lakes, estuaries and coastal waters safe for swimming, fishing, drinking and aquatic life.
“Everything we do is done in a fishbowl, and everyone wants to weigh in on the quality of the science,” said Southerland, director of the Office of Science and Technology in EPA’s Office of Water, who calls those stakeholders “reviewers of our work.”
Although passage of the first water pollution control law nearly 70 years ago, and its expansion in 1972, may seem like ancient history, EPA continually examines and updates water-quality criteria based on new findings and better understanding of the science.
“We constantly have work going on, collecting data to see if we need to update old science or have new science available,” Southerland said.
For example, EPA recently changed a standard on ammonia, a pollutant municipal wastewater treatment plants use to treat sewage, which is toxic to fish and shellfish. Southerland’s office released “a brand new toxicity criterion that’s more stringent than one previously used.”
State officials now are discussing with Southerland’s office when they’re going to adopt the criteria, and what approaches municipal treatment plants can use to update their facilities in an affordable way.
“We always work on both ends, with the state and the affected party,” said Southerland, 65, who oversees a multidisciplinary staff of 130 people.
“Her office prepares the scientific basis for the actions we take here in the water office,” said Ken Kopocis, deputy assistant administrator for EPA’s Office of Water.
“We’re never finished. There are always new challenges facing us,” he said, pointing to problems in Toledo and Charleston, W. Va., last year, when residents couldn’t use their tap water due to the presence of toxins or chemicals.
“We’re always looking at chemicals of concern, and we develop proper standards,” he said.
Southerland has her staff cast a wide net for science-based information. They review toxicological studies from around the world, and if that’s insufficient, they may turn to EPA’s Office of Research and Development to perform original research. EPA makes national recommendations on allowable pollutant levels based on that science.
Southerland and her staff also work with 10 EPA offices around the country to review and approve, or disapprove, state water-quality criteria used to issue permits to industrial or municipal facilities that discharge pollution into the waterways. Their work also results in national drinking water advisories, which are not mandatory, that water utilities use as guidance to prevent drinking water from containing unhealthy levels of pollutants.
Separate from setting water-quality criteria, Southerland’s office establishes national pollution-control technology requirements for industries. Industrial facilities, no matter where they reside, must meet national permit levels based on the best available, economically achievable technology.
“Congress’s intent was to prevent pollution havens,” Southerland said.
One new and controversial technology rule requires controls on water intake used to cool turbines and machinery at all power plants and some manufacturing facilities. Instead of indiscriminately sucking in huge amounts of water and killing small fish, plants, larvae and other aquatic life, facilities have to install filtering equipment.
“There’s all kinds of recommended equipment for how to do it,” Southerland said. “Billions of organisms are killed each year.”
Industry believes the rule is too stringent and environmentalists believe it is not stringent enough, Southerland said, which has led to litigation from both sides. She seems unflustered by the controversy.
“That’s the process,” she said. “A lot of times the courts rule for EPA, but we’re subject to complete discovery. In the end, we want everyone to feel they had their voice heard.”
The job appeals to Southerland, who has a Ph.D. in environmental science and engineering and who, during her 30 years at EPA, also worked on the Superfund hazardous waste program. Her EPA work gives her the opportunity to fix inadequate rules, examine new areas of science and gain access to the world’s literature and leading experts in environmental science.
Then her office gets to support recommendations that protect people and marine life, based on the applied sciences that hold such interest for her.
“I’m not an abstract person,” she said. “I like to work in things that have immediate effect-on-the-ground actions. That’s what I do that is so exciting.”
This article was jointly prepared by the Partnership for Public Service, a group seeking to enhance the performance of the federal government, and washingtonpost.com. Go to the Fed Page of The Washington Post to read about other federal workers who are making a difference. To recommend a Federal Player of the Week, contact us at fedplayers@ourpublicservice.org.
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Export Ban's Financial Impact to U.S. Producers Has Been Understated -- Study
Mar 26, 2015 | E&E - Energywire
By Jenny Mandel
The U.S. crude export ban is taking a larger pinch out of domestic oil producers' wallets than a quick look at the benchmarks shows, according to a study that factors in the price premium for light, sweet crude to calculate costs.
The price spread between a barrel of crude sold in Cushing, Okla., and a similar barrel sold in Europe at the Brent index price has at times gone above $10 per barrel recently, raising concerns that flooded domestic markets and a lack of international outlets are cutting into producers' ability to operate.
But a new study by Kenneth Medlock, senior director of Rice University's Center for Energy Studies, crunches data on oil grades and global pricing along a range from $30 to $150 per barrel to show that the price impact is even bigger than it looks. That's because domestic light, tight oil would normally fetch a higher price than either the heavier West Texas Intermediate (WTI) or Brent crude grades.
"Studies that focus on the differential between WTI and Brent effectively underestimate the 'discount' that is being realized by the higher-quality light oils produced from shale," Medlock said. "The implication is that earlier studies likely underestimate the impact on U.S. shale production from removing the oil export ban."
Medlock notes that domestic light crude has already displaced imported light oil and has moved steadily down the quality chain to back out crudes that are heavier than WTI. That effectively puts new production from formations like the Bakken, Permian and Eagle Ford shales in competition with less expensive grades of imported fuel.
The study says the discount of WTI relative to Brent has averaged more than $12 per barrel since the end of 2010, "which is especially remarkable given WTI priced at a premium of $1.37 (average) the decade prior. This provides evidence of an emerging, binding constraint on the ability to trade WTI."
A slew of recent studies -- many funded by organizations with close ties to the oil and gas industry -- have similarly concluded that U.S. oil production would grow if the current ban on exporting crude outside a few limited circumstances were lifted (EnergyWire, March 17). Others have considered and rejected concerns that exporting U.S. crude would raise domestic gasoline prices, with most concluding that drivers would benefit from oil exports because such shipments would nudge down refiners' feedstock costs (EnergyWire, Dec. 11, 2014).
Medlock's study also assessed energy security concerns associated with crude exports, concluding that wider sales would help world economies by reducing the volatility of oil prices and would support U.S. foreign policy objectives.
The work notes other possible concerns with lifting the export ban, including worry that doing so would motivate additional drilling that brings environmental impacts and requires new pipelines and other disruptive infrastructure build-out. But Medlock dismisses the role of export policy in addressing these, noting that "it is more efficient to use environmental policies to address environmental concerns."
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Wyoming is First State to Start Fracking MOU Talks
Mar 26, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
The Bureau of Land Management on Wednesday began talks with the state of Wyoming to enter into a memorandum of understanding over aligning state regulations and the federal government’s newly finalized fracking rule, BLM Director Neil Kornze told lawmakers at a Natural Resources Committee hearing today.
Kornze told POLITICO that BLM has reached out to several states, but that “the only one that I know of a formal, actual sit-down is Wyoming.” More meetings will take place in the coming weeks, he said.
He added that he expects many MOUs can be in place before the rule goes into effect in approximately three months.
“We have MOUs with many states already, so I don’t think it will be a matter of days. But I think before the fracking rule is implemented we’ll be able to get a number of them in place,” Kornze said.
BLM says it will work with states that already regulate fracking to sign an MOU if their rule is deemed more stringent than the federal standard.
But some state and industry critics argue that the rule will simply add more federal red tape on top of state oversight. -
GOP Dings Interior Fracking Rule
Mar 26, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
House Republicans today slammed the Interior Department’s new rule governing fracking on federal lands.
“You’ve heard some of your fracking rules are too weak, don’t go far enough. That’s wrong,” Natural Resources Chairman Rob Bishop said at a hearing with Bureau of Land Management Director Neil Kornze.
Energy and Mineral Resources Subcommittee Chairman Doug Lamborn said he is “very disappointed” with the outcome.
“You’re going to drive marginal production out,” he said. “There are always going to be those areas where maybe it’s justified, maybe it’s not, but you add on extra costs and suddenly it becomes not viable.”
Lamborn also questioned the efficacy of the rule, given dissatisfaction from all sides and Kornze’s statement that the industry is already taking many of the actions the regulation requires.
“So the rule wasn’t even really necessary,” Lamborn said. “States are doing a good job, and where they’re not you could have just stepped in.”
Earlier, subcommittee ranking member Alan Lowenthal called the fracking rule only a “modest update.” As for the critics alleging that the rule presents an “earth-shattering change,” he said, “I have to wonder what color is the sky in their world.” -
Fracking Moratoriums Pass in Both Md. Chambers
Mar 26, 2015 | E&E - Energywire
The Maryland House of Delegates and the state Senate passed legislation that would forbid drilling for natural gas in the state's western portion for three years and hold drilling companies financially accountable if things go awry.
The bills sparked heavy debate and are far from being signed into law but reflect the intense atmosphere surrounding hydraulic fracturing in Maryland. Both bills could be vetoed by Gov. Larry Hogan (R), who has described the production method as an "economic gold mine."
Only a small portion of Maryland is suitable for fracking. Environmental groups opposing fracking have cited environmental and health impacts as cause for fighting. On the flip side, proponents have cited potential jobs as a catalyst to move forward to allow drilling.
Last year, then-Gov. Martin O'Malley (D) said the state would allow fracking while imposing stringent public health and safety regulations. Those regulations are slowly progressing through a review process.
Hogan "is currently reviewing both pieces of legislation," said spokeswoman Erin Montgomery. "However, as he has repeatedly said, if fracking can be done in an environmentally safe way, then he would want to move forward with it" (Jenna Johnson and Ovetta Wiggins, Washington Post, March 24). -- KS
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SAB Panelists Press EPA For Policy Context Of Biomass Carbon Framework
Mar 26, 2015 | InsideEPA
By Dawn Reeves
Several members of EPA's Science Advisory Board (SAB) panel are urging the agency to describe the specific policies to which the agency will apply its revised draft framework for estimating greenhouse gas (GHG) emissions from biomass energy, saying the agency's generic, policy-agnostic approach makes it difficult to offer advice on the draft.
At a March 25 meeting, SAB panel chair Madhu Khanna of the University of Illinois and other members of the SAB panel pressed EPA to explain how the framework would interact with specific regulatory policies, with some suggesting that without knowing what policy the framework will be used for, they cannot offer recommendations.
Khanna asked EPA to provide “more specificity” to help the panelists answer the charge questions. She noted that EPA has suggested the framework will be used to assess biomass carbon used at stationary sources, disregarding upstream and downstream emissions from producing and delivering the feedstock.
Khann said those parameters are good to know but suggested panelists also need to know “the scale of the policy” and whether biomass feedstocks are considered in isolation or together.
“It's one thing to say” EPA will regulate GHGs under the Clean Air Act, and here's a framework for that, and quite “another thing if you had a policy that had a target,” such as EPA's proposed existing source performance standards (ESPS) that seeks to cut power sector GHGs by 30 percent in 2030.
The panel could answer the charge questions differently depending on what policy EPA intends to apply the framework to. “We can try to provide general answers but there are so many options” in the framework, which offers a menu-like approach, that it becomes difficult, she said, adding the panel wants to “target” its responses.
Also, panelist Peter Woodbury, of Cornell University, was more blunt, saying that without a policy context the panel could not do its work. “No, we cannot, in my opinion, really evaluate the scientific basis or efficacy . . . without a specific policy context.”
However, EPA's Allen Fawcett, an economist in the agency's air office, defended the policy-neutral approach, saying the panel did not “need to go” as far as Woodbury was suggesting, and instead could identify policy aspects that “are particularly relevant for forming responses to” the charge questions. “Are there ways you can think about those answers” for different policy options? he asked.
Fawcett added, “We don't have a current policy that we are looking at applying [the framework] to right at this very moment” but that there are “a whole range of policies that we could imagine applying” it to “with very different effects.”
For example, Fawcett said the accounting factors could be used in a policy setting a carbon price, and would impact biomass differently if that price were $5 per ton or $50 per ton. “Both have different incentives for bioenergy and different impacts on the landscape,” he said. “We want to be able to ask you” to help EPA develop default factors “that could be applicable in either situation.”
Fawcett explained that the framework was not a full lifecycle analysis of biomass because it does not account for the use of forestry equipment and trucks to carry lumber. Fawcett said those types of emissions could be covered under other policies. The framework is “more focused on the landscape emissions associated with” biomass, he said, comparing that to EPA's approach to measuring coal and gas emissions at the smokestack, while excluding emissions from producing and transporting the fuel.
However, Fawcett did acknowledge that “the form of the policy potentially could matter” in assessing biogenic emissions. For example, there could be significant differences between a policy to set a carbon price and one that establishes renewable energy requirements. “Different types of policies could have differing incentives for bioenergy. Does that matter for developing default factors?”
Second Draft
The SAB panel is reviewing EPA's second attempt at drafting a framework for estimating GHG emissions from biomass power generation. Industry and labor groups argue that biomass combustion should be exempt from regulatory requirements because it is carbon neutral, as the carbon dioxide (CO2) is absorbed by forest regrowth -- an approach that EPA generally supports.
Environmentalists, however, say some materials burned for energy -- such as whole trees -- emit more CO2 than coal because of a dramatic immediate release of GHGs that takes decades to resequester.
The agency's first draft, issued in 2011, drew strong criticism from SAB the following year for failing to describe how it would be implemented, which the advisors said made it difficult to evaluate its technical aspects. The panel also urged EPA to describe the policy motivation for the framework and develop default regional and feedstock-based accounting factors to help assess the framework.
But in its revised framework, issued last November, EPA declined to detail how the framework would be used to implement specific policies. In a memo issued the same day, however, EPA's acting air chief Janet McCabe said EPA would consider allowing undefined “sustainably harvested” biomass to be used for compliance in the agency's pending ESPS, but has offered no further specifics.
In a memo EPA submitted to SAB last month, the agency says it decided to maintain its earlier policy-agnostic approach and ignore calls to discuss implementation options because it wants to provide regulators with flexibility.
“Ultimately, EPA found that the most appropriate course of action at this time is to be as flexible as possible: the revised framework outlines a policy-neutral approach to assess the extent to which there is a net atmospheric contribution of biogenic CO2 emissions from the production, processing, and use of biogenic material at stationary sources. The framework also explains in detail particular elements of the framework equation where policy-relevant choices would need to be made for application to a specific policy or program,” the memo says.
But the agency's defenses did little to assuage SAB panelists. In early comments they provided on the latest draft framework, some panelists said the new framework may be even more difficult to implement than the earlier plan.
The new framework “looks even more difficult to actually implement in any kind of regulatory framework” than the original that SAB sent back to EPA for a significant overhaul in 2012, panelist Daniel Schrag of Harvard University wrote.
Policy Context
At the March 25 meeting in Washington, D.C., -- the first of two days -- the panelists continued their criticisms and pressed EPA for a policy context.
Panelist John Reilly of the Massachusetts Institute for Technology argued -- as he did in his early comments -- that he saw “no reason for this framework whatsoever,” and that EPA could consider biomass carbon neutral if sustainable forest practices are used and other policies are in place to account for emissions from activities such as timber transport.
In response, Fawcett asked the panel to “think about” whether a sustainability policy versus a framework-based policy is preferable and to go forward with “one or the other.”
Environmentalists and others have complained that sustainability has nothing to do with GHG emissions, and they criticize EPA for moving forward with a final GHG rule for existing power plants before completing the biomass framework.
Harvard's Schrag also noted that despite EPA's claims, the framework is not policy neutral. “This is policy specific” regarding EPA's Clean Air Act authority to regulate stationary sources of GHGs. He suggested EPA instead call it “general principles” that could be applicable to other policy contexts.
In response, Fawcett acknowledged a specific air law policy context while noting EPA's “desire to be flexible enough to be relevant to other future policies.” For example, he noted it could apply to domestic policies such as the ESPS “while we simultaneously pursue international agreements” that are proceeding under a different time frame and using different authorities.
Panelist Steven Rose of the Electric Power Research Institute said he continued to struggle with what the panel is being asked to do without a policy context. “Especially if the outcome of this panel . . . is that we've somehow endorsed or validated certain parts of the framework -- if that conclusion is sought, then we should be thinking about these bigger issues,” he said.
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EPA Nears Designating Dozens More Areas In SO2 NAAQS 'Nonattainment'
Mar 26, 2015 | InsideEPA
By Stuart Parker
EPA is moving toward designating dozens more areas in "nonattainment" with its sulfur dioxide (SO2) national ambient air quality standards (NAAQS), as the agency seeks to meet court-ordered deadlines for completion of its severely delayed designation process with a reliance on air quality modeling that many states contest.
In a March 20 policy memorandum to EPA's regional offices, Stephen Page, director of the agency's Office of Air Quality Planning and Standards (OAQPS), lays out EPA's policy for meeting a court-mandated schedule for issuance of its remaining nonattainment designations for the 2010 SO2 1-hour standard, which EPA set at 75 parts per billion.
Separately, the agency has recently sent letters to 28 states informing them of dozens of areas that may not be meeting the 2010 NAAQS. Areas in nonattainment must impose tougher pollution controls on industry or face the ultimate sanction of losing federal highway funds.
Although EPA tightened it NAAQS in 2010 by creating the 1-hour standard, the process of designating areas meeting the standard and those in nonattainment has been severely delayed amid fighting among the states, EPA and environmentalists over the agency's policy regarding air quality modeling and monitoring.
A lack of air quality monitors across the country that could capture violations of the new NAAQS means that EPA initially established a process for designation that relied heavily on air quality modeling. When some states objected that the computer models use inherently conservative assumptions that might produce unwarranted nonattainment designations, EPA revised its policy to allow use of newly established monitoring networks instead.
To allow time for states to set up new monitoring networks, EPA extended the designation process out until 2020 for those areas relying on new monitoring -- far beyond Clean Air Act-mandated deadline for EPA to complete designations by June 2012. In August 2013, EPA then issued designations for only 29 areas in 16 states, prompting environmental and some states to file suit against the agency in a bid to force issuance of the remaining designations.
EPA then entered into a consent decree, approved by the U.S. District Court for the Northern District of California, setting designation deadlines to resolve the litigation. Under the schedule, EPA must issue the next designations by July 2, 2016, to include areas with newly monitored violations of the NAAQS and sources defined as "large."
NAAQS Designations
The consent decree requires EPA to designate areas with fresh monitored violations of the NAAQS. Also, EPA must designate areas containing sources that, according to EPA's Air Markets Database, either emitted more than 16,000 tons of SO2 in 2012, or emitted more than 2,600 tons of SO2 and had an annual average emission rate of at least 0.45 pounds of SO2 per million British Thermal Units in 2012 and had not been scheduled for retirement as of March 2 this year.
"We recognize that the timeline for designations by July 2, 2016, does not provide for establishment and use of data from new ambient monitors. Therefore, we anticipate that in many areas the most reliable information for informing these designations will be based on source modeling," Page writes in the memo to EPA's regions.
EPA has identified six counties with monitors that are newly violating the NAAQS, and 69 individual sources in 24 states meeting the court's criteria defining large sources, according to a fact sheet and related technical documents released alongside the Page memo.
Although the areas in question may stand a stronger chance of being designated nonattainment, they are not necessarily going to face a such a designation if they can provide data showing they should be classified in attainment.
For example, EPA's acting air chief Janet McCabe in a March 20 letter to the Alabama Department of Environmental Management says, "EPA will use the most recent available information when making designation and boundary decisions for the indicated area." States are given until Sept. 18 to submit recommendations and supporting information on designations for areas at issue.
Under the consent decree, EPA must complete the subsequent round of designations by December 31, 2017, for remaining undesignated areas in which, by Jan. 1, 2017, states have not installed and begun operating an appropriate SO2 monitoring network meeting EPA specifications stated in an upcoming final monitoring and modeling rule. EPA proposed the rule in May last year, but has yet to finalize it. All remaining areas must be designated by December 31, 2020.
Designations Lawsuit
Meanwhile, the Department of Justice (DOJ) in a March 13 reply brief on behalf of EPA defends the agency's initial round of SO2 NAAQS designations in Treasure State Resource Industry Association, et al. v. EPA, et al. The ongoing litigation consolidates states' challenges to individual area designations on technical grounds.
For example, Treasure State, a body representing resource-based industries, takes issue with EPA's designation of the Billings, MT, area as nonattainment, while U.S. Steel faults EPA for not including another company's facility based in a neighboring county in the nonattainment designations for Detroit.
EPA rebuffs all the technical criticisms of the parties in the suit, saying, "EPA reasonably designated the Billings, Montana area as nonattainment in regard to the 2010 SO2 NAAQS based on 2009-2011 monitoring data showing exceedances of that standard."
The agency further says some petitioners, such as U.S. Steel, lack standing to sue for the case, which is pending in the U.S. Court of Appeals for the District of Columbia Circuit.
In U.S. Steel's case, EPA says the company's case is based on a non-decision -- EPA's decision not to designate Monroe County, MI, as nonattainment -- and as such is not based on a judicially reviewable "final agency action."
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Dems Intensify Fight for Oil Train Regulations
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama and Keith Laing
Senate Democrats unveiled an effort Wednesday to expand the scope of forthcoming regulations on trains carrying crude oil, countering a push from business groups to soften the rules.
Four senators are pressing legislation that would require the Department of Transportation (DOT) to regulate the volatility of oil being moved in trains, a proposal that goes beyond plans to focus on the design of tank cars.
The push for new regulations comes in response to a series of accidents in the United States and Canada that have raised questions about the safety of shipping crude oil by freight rail.
The bill faces strong industry opposition, and oil, ethanol and freight rail interests have been meeting with White House officials in an effort to dial back the DOT’s upcoming regulations.
Apart from beefing up design standards for tanker cars, regulators want to phase out older cars in two years, enhance braking systems and reduce rollovers, and impose new speed limits in urban areas.
Sen. Maria Cantwell (Wash.), the top Democrat on the Energy and Natural Resources Committee, said the Obama administration should go further. She disputed assertions that the Transportation Department’s Pipeline and Hazardous Material Safety Administration (PHMSA) lacks the legal authority to regulate the volatility of crude oil.
“I believe that with DOT, PHMSA has the ability to do this,” Cantwell told reporters Wednesday. “They should set a standard on volatility. They are currently not in the process of doing a rule-making on it.”
Cantwell’s bill, backed by Sens. Tammy Baldwin (D-Wis.), Patty Murray (D-Wash.) and Dianne Feinstein (D-Calif.) would require PHMSA to regulate the content of gases like butane, propane, methane and ethane in crude oil extracted from the Bakken region of North Dakota, the center of the recent boom.
Those gases’ contents add to their volatility, which determines how easily the oil will explode when a tank car is breached. Environmentalists say Bakken crude is more volatile than oil from elsewhere.
“As more and more volatile crude oil moves through Wisconsin and through our country via rail, it’s critical that appropriate safety measures are in place to reduce the risk of having accidents,” Baldwin said.
Meanwhile, the industries involved in oil trains have been rushing to meet with Office of Management and Budget (OMB) officials as the agency conducts its final review of the DOT regulations.
The various business interests agree that parts of the proposal, such as car standards and the phaseout timeline, go too far.
A presentation by the Association of American Railroads (AAR) to the OMB focused on the costs associated with the proposal to require electronically controlled pneumatic brakes.
“[That type of brake] has been in very limited service for over 15 years and has yet to meet the reliability standards required in the tough outdoor environment that we operate,” the AAR wrote in the presentation, adding that the mandate would not bring substantial safety or business benefits and would be extremely costly.
The AAR and the American Petroleum Institute (API) previously filed formal comments with regulators saying that phaseout timeline for old cars is too aggressive and asking for a total of seven years.
The railroad group has problems with the regulations, including the braking mandate, but it would rather let the regulatory process play out than have Congress step in and impose stricter rules.
“The freight rail industry shares Sen. Cantwell’s vision for the safer movement and handling of crude by rail and believes that many of the issues outlined in her proposed legislation are soon to be addressed in the long-awaited PHMSA rule-making,” said Ed Greenberg, a spokesman for the group.
API spokesman Brian Straessle said his group was still reviewing the Democrats’ legislation.
Environmental group ForestEthics meanwhile, applauded the bill.
“I’m actually super supportive of and impressed by the bill that came from the Senate Democrats,” said Matt Krogh, the leader of ForestEthics’s oil campaign.
Krogh said regulators need to take volatility into account better than they currently do.
“I think there’s an immediate need for understanding what’s actually being transported,” he said.
Public Citizen said the bill is a great opportunity to rein in unsafe oil trains.
“We can’t let oil and railroad companies make their own rules,” Tyson Slocum, director of the group’s energy program, said in a statement. “Sen. Cantwell’s bill wouldn’t let them, and instead would — rightly — put public safety ahead of corporate profits.”
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Crude-by-Rail Bill Would Pull Thousands of 'Unsafe' Cars Off the Tracks
Mar 26, 2015 | E&E - Energywire
By Blake Sobczak
Four Senate Democrats have unveiled a bill to take nearly 40,000 "unsafe" tank cars off the tracks following a series of recent oil train derailments.
The "Crude-By-Rail Safety Act" would also curb the level of volatile gases in rail-bound oil from North Dakota's Bakken Shale play.
Sens. Maria Cantwell (D-Wash.) and Tammy Baldwin (D-Wis.) spoke yesterday morning about the legislation, which is also backed by Sens. Patty Murray (D-Wash.) and Dianne Feinstein (D-Calif.).
"Derailments keep happening, and we need to take responsibility to ensure that our rails are safer," Cantwell said, citing four fiery oil train accidents that have occurred since February in Ontario, West Virginia and Illinois.
Cantwell said she also plans to introduce a bill that would set up an oil spill liability "trust fund" for disasters, potentially fed by tariffs on crude-by-rail shipments. Canadian authorities are still struggling to recover costs from an oil train derailment and explosion in Lac-Mégantic, Quebec, that killed 47 people in 2013.
The "Crude-By-Rail Safety Act" has already faced criticism from the oil industry. Jack Gerard, president of the American Petroleum Institute, said yesterday he was still reviewing the legislation, but "anything that would disrupt the energy marketplace and just holistically pull cars off the track is not the thoughtful, right approach."
Industry groups such as API and the American Fuel and Petrochemical Manufacturers have urged regulators to focus on track maintenance and railroad operating procedures as opposed to the properties of the oil being moved or the integrity of the older-model tank cars. Both groups have called for a more leisurely deadline for phasing out the type DOT-111 cars that would be immediately banned by Cantwell's legislation.
Yesterday's bill may also get a chilly reception from Senate Republicans, although Baldwin said she was "hopeful" it would find support.
Lawmakers on both sides of the aisle have called for the Department of Transportation to speed up a "comprehensive" crude-by-rail rule that would address many of the same issues included in yesterday's bill, such as setting a new tank car standard and offering a timeline for pulling older cars out of crude and ethanol service. But the DOT regulations are not expected to deal with the volatility of Bakken crude, and Republicans such as Sen. Shelley Moore Capito of West Virginia have stopped short of supporting such a federal standard (E&E Daily, March 25).
North Dakota has passed its own rule requiring shippers to strip Bakken crude of some gases before packing the product in rail cars. That state-level order is set to take effect next week but has already faced criticism for being insufficient.
The Department of Energy added fuel to the debate over Bakken crude Tuesday with its own review of existing chemical data. The report failed to establish a link between light Bakken oil's volatility and the severity of recent derailments, although it cited the need for further study.
"We shouldn't just assume that one little change to crude oil characteristics is somehow going to fix our challenge," said API's Gerard, noting that lawmakers also needed to go beyond "messaging legislation" to look at "prevention, mitigation and response."
Gerard fielded reporters' questions during a conference call announcing an industry-led expansion of safety training programs for first responders.
Local preparedness for crude oil disasters has also drawn scrutiny in Congress recently. Sen. Heidi Heitkamp (D-N.D.) has proposed an amendment to the Senate's 2016 budget that would fund a review of small-town fire departments' crude-by-rail response capabilities.
Baldwin signed on to Heitkamp's proposal in addition to backing yesterday's "Crude-By-Rail Safety Act."
"We can't wait for another accident to occur before taking action," she said, pointing out that an explosion near Galena, Ill., earlier this month took place just a few miles from the border with Wisconsin (EnergyWire, March 6).
An array of environmentalist and regulatory watchdog organizations welcomed the introduction of the "Crude-By-Rail Safety Act" in statements yesterday.
"We can't let oil and railroad companies make their own rules," said Tyson Slocum, director of energy programs at consumer advocacy group Public Citizen. "Sen. Cantwell's bill wouldn't let them, and instead would -- rightly -- put public safety ahead of corporate profits."
In comments to reporters yesterday, Cantwell suggested the oil and rail industries may overstate the economic impact of the stronger tank car standards and higher fines for volatility violations included in her legislation.
"The fact that we haven't had an explosion like what happened in Canada is not a reason not to get the answers on safety," she said. "We currently have the highest storage of this product in years, and crude oil prices are down 60 percent since last summer, so I really don't think the price is an issue at this moment -- I think safety is the issue of today."
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Washington Pushes for Holistic Response to Rail Accidents
Mar 26, 2015 | Pittsburgh Post-Gazette
By Daniel Moore
U.S. railroad and energy companies joined Congressional lawmakers and environmentalists on Wednesday in calling for a more comprehensive response to a string of fiery derailments of trains carrying crude oil.
In dual announcements, industry groups announced a new educational course for first responders, while two Democratic senators introduced legislation that, among other changes, would immediately ban older tank car models and require more track and commodity inspections.
The proposals in Washington doubled down on growing public awareness and alarm over freight rail safety as shipments of the volatile oil have dramatically increased between North Dakota’s Bakken Shale and refineries throughout the country.
Two Washington, D.C.-based trade groups, the American Petroleum Institute and Association of American Railroads, introduced a new educational course for local first responders that is expected to debut this weekend at a firefighting conference in Nebraska and an annual short-line railroad conference in Florida.
The two groups have worked since last summer to develop a combined course, which explains the characteristics of crude oil, the designs of oil tanker cars, strategies for responding to a spill and handling a crude oil fire, according to a 55-slide PowerPoint presentation posted online.
In a conference call with reporters, American Petroleum Institute President and CEO Jack Gerard acknowledged that a boom in crude oil production has put more of it on rail lines as supply has outpaced existing pipeline capacity. But he said both the energy and rail industries have “knowledge and expertise that can help prepare firefighters and other first responders to take the appropriate actions if a derailment involving a crude oil train does occur.”
Accident prevention is “not a goal that can be reached through any single action or step,” Mr. Gerard said. “Eliminating the last elements of risk requires a holistic and science-based approach.”
The course is meant to be taught by emergency response experts certified by the Transportation Community Awareness and Emergency Response group, known as Transcaer, which is in charge of coordinating sessions and distributing DVD recordings of the class to any emergency response group that would want it. Transcaer is a national volunteer emergency response group that helps local communities handle transportation accidents involving hazardous materials.
Guy Miller, one of two Pennsylvania state coordinators for Transcaer, said the Keystone State is among 15 states that will roll out the course, but logistics are still in the works. Mr. Miller, who works full time with Vertellus Specialties Inc., an Indianapolis-based specialty chemicals manufacturer, said the lecture could be delivered during quarterly training exercises organized by the Pennsylvania Emergency Management Agency.
While training exists for local response agencies, Mr. Miller said, it’s important they have access to streamlined guidelines specifically on crude oil for the 27 counties statewide that see crude oil traffic.
“This whole Bakken crude has really gotten ahead of the curve,” Mr. Miller said. “We’re fighting a battle to get first responders prepared with this information.”
Production in the Bakken has leveled off at about 1.3 million barrels per day, an increase from about 1.1 million per day last April and about 200,000 per day in 2009, according to the U.S. Energy Information Administration.
Coinciding with the industry groups’ announcements, U.S. Sens. Maria Cantwell, D-Washington, and Tammy Baldwin, D-Wisconsin, introduced a bill that would immediately ban the older tank car models, the DOT-111s, as well as the newer train models, the CPC-1232s, not fitted with a puncture-resistant steel jacket.
The West Virginia accident last month involved the CPC-1232 model.
It called for more inspections of infrastructure, increased public disclosure of local train movements and a maximum volatility standard for oil prior to shipment by rail.
The proposals, hailed in statements from environmental groups including the Sierra Club, Earthjustice and ForestEthics, emphasize the focus of safety advocates who have called for more stringent federal regulations on rail tanker cars.
“The freight rail industry shares Sen. Cantwell’s vision for safe movement of crude oil by rail,” said Ed Greenburg, spokesman for AAR. “We recognize the concerns that’s been expressed by the general public over recent high-profile incidents.”
Some — including Pittsburgh’s Deputy Director of Public Safety Michael Huss — have proposed diluting the oil before putting it on the tracks as well as rerouting trains carrying hazardous materials around major population centers.
City Spokeswoman Sonya Toler said safety officials could not comment on the new educational material because they had just learned about it. In an interview earlier this month, Mr. Huss said he believed first responders had all the information and training necessary in the event of an accident.
“We have planned the best we can to handle this type of emergency,” Mr. Huss said.
A study earlier this month by Pittsburgh investigative journalism outlet PublicSource found that at least 1.5 million Pennsylvanians fall into the evacuation zone should a crude oil train derail near their home.
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Railroads, Energy Industry Offer New Crude-by-Rail Safety Course to First Responders
Mar 26, 2015 | Progressive Railroading
A new crude-by-rail safety course designed for emergency response organizations and fire departments was unveiled by the Association of American Railroads (AAR) and the American Petroleum Institute (API) yesterday.
The introductory course, offered free of charge, is available to first responders via the Transportation Community Awareness and Emergency Response (TRANSCAER®) program, of which railroads and oil companies are members.
The safety course is now available through TRANSCAER and soon will be available in a DVD format. Course materials cover characteristics of crude oil, a description of the tank cars in which it is shipped, spill response, firefighting considerations and other information to help fire departments and other emergency response organizations learn about the safety of moving crude oil by rail.
The program will be offered at hazmat and emergency response conferences across North America, and course offerings are already confirmed or being planned in more than 15 states, AAR and API officials said in a joint press release.
"Freight railroads are fully committed to the safe movement of crude oil and other hazardous materials by rail," said AAR President and Chief Executive Officer Edward Hamberger. "This course is another example of how railroads and their customers work with communities coast-to-coast to help with awareness and preparedness for any type of incident."
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