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ACC AM Mar 27
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(ACC Mentioned) Composite Panel Association Names Morrill Its New President
Mar 26, 2015 | Woodworking Network
The Composite Panel Association has hired Jackson Morrill as its new president, effective April 13. Morrill replaces Tom Julia, who left the CPA last August. Morrill has been serving as director for the American Chemistry Council (ACC) since 2010, where he managed the Formaldehyde Panel directing comprehensive state and federal advocacy... -
(ACC Mentioned) Amazon Setback Pushes Drone Law focus to Europe
Mar 27, 2015 | The Global Legal Post
Seattle-based Amazon has commmitted itself to begin using drones to make its deliveries when it can and had hoped to pilot the technology in the US. But permission from the US Federal Aviation Administration took six months to come through, by which time the prototype was obsolete. Paul Misener of Amazon told a Senate Committee this week... -
Chemists Gather In Denver
Mar 26, 2015 | Chemical & Engineering News
By Susan J. Ainsworth
Surrounded by the snowcapped Rocky Mountains and home to numerous oil, gas, and mining companies, Denver proved a fitting site for the American Chemical Society national meeting and exposition, which spotlighted the “Chemistry of Natural Resources” from March 22–26. Inspired by the area’s rugged landscape, some attendees... -
Chemical Safety Board Chairman Gives Up Leadership, Expected to Remain as Member
Mar 27, 2015 | BNA Daily Environment Report
By Robert Iafolla
Chemical Safety and Hazard Investigation Board Chairman Rafael Moure-Eraso resigned his post as head of the agency March 26, bowing to White House pressure to step down just three months before his five-year term was set to expire. Nevertheless, Moure-Eraso will remain at the agency as a board member for an undetermined period of... -
Obama's Chemical Agency Chief Resigns Under Pressure
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
The embattled chairman of the Chemical Safety Board resigned late Thursday after President Obama asked him to step down, a White House official said. Obama sought Rafael Moure-Eraso’s resignation after intense pressure from both Republicans and Democrats in Congress following numerous allegations that he broke the law and was an... -
Under Pressure, Chemical Safety Head Resigns
Mar 26, 2015 | National Journal
By Jason Plautz
Facing pressure from the White House and members of Congress from both parties, the head of the Chemical Safety Board is resigning effective Thursday. Chairman Rafael Moure-Eraso announced his resignation to staff in an email Thursday evening; the news was confirmed by CSB. He led the agency since 2010, a tenure dogged by internal... -
Democrats Denounce Federal Fracking Rule As Too Weak to Ease Concerns on Pollution
Mar 27, 2015 | BNA Daily Environment Report
By Alan Kovski
New federal regulations on hydraulic fracturing for oil and gas operations were attacked from both sides of the aisle but especially the Democratic side during a March 26 congressional hearing. On the same day, another attack came in the form of a lawsuit filed by Wyoming against the rule. The Bureau of Land Management's new rule to update... -
Wyo. Launches Legal Fight Against BLM Fracking Rule
Mar 26, 2015 | E&E News PM
By Ellen M. Gilmer
Wyoming today became the first state to formally challenge the Obama administration's new rule for drilling on public and Indian lands, filing a lawsuit in U.S. District Court for the District of Wyoming that calls the regulation an overreach of federal authority. The suit is the second legal challenge since the rule's unveiling less than a week ago. -
In New York State, Fracking Ban Fuels Secession Talk
Mar 26, 2015 | LA Times
By Tina Susman
From this village of dairy farms and friendly diners, Carolyn Price can see across the border into Pennsylvania, and it is a bittersweet view. The rolling hills a few miles away are as green as the ones here, and the Susquehanna River is icy and beautiful on both sides of the state line as it meanders toward the Atlantic. -
Supreme Court Likely to Review EPA Carbon Rule for Power Plants, ABA Speaker Says
Mar 27, 2015 | BNA Daily Environment Report
By John Henry Stam
The U.S. Supreme Court is likely to address climate change again when the Environmental Protection Agency's Clean Power Plan is challenged, a speaker said at an American Bar Association meeting March 26. The Supreme Court is receptive to granting review to climate change cases, Peter Keisler of Sidley Austin LLP said at the annual spring... -
Lessons From the 'Vote-A-Rama'
Mar 27, 2015 | E&E Daily News
By Nick Juliano
Sometime after 3 o'clock this morning, the Senate adopted its budget resolution for next year, 52-46, after a unique, marathon session that featured dozens of votes on everything from climate change policy to health care to sanctions on Iran. For procedural reasons, the amendments were all vaguely worded and nonbinding -- which limits somewhat... -
McConnell Amendment Slows EPA Regulations
Mar 27, 2015 | The Hill - Floor Action
By Jordain Carney
The Senate passed an amendment Thursday night that makes it harder for the White House to enforce environmental regulations. Senators voted 57-43 on the proposal by Majority Leader Mitch McConnell (R-Ky.). The amendment blocks the administration from withholding highway funds if a state doesn't submit an implementation plan for a... -
The Hidden Benefits of Cutting Coal Pollution, and Why They Matter
Mar 26, 2015 | The Washington Post
By Puneet Kollipara
A key Environmental Protection Agency effort to cut power plant emissions of toxic metals and gases is up in the air, so to speak. Industry groups have asked the Supreme Court to overturn the rule, arguing that the EPA should have weighed the costs of regulating those pollutants in deciding whether taking any action at all was “appropriate and ... -
Energy Efficiency Bill Passes Senate in Early Morning
Mar 27, 2015 | The Hill - E2 Wire
By Jordain Carney
Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) squeaked in a vote early Friday morning on their energy efficiency bill after the Senate ended an hours-long marathon on the budget. The Energy Efficiency Improvement Act was passed by voice vote, with the two senators the only two on the floor after 4 a.m. Friday. -
Republican Senators Seek Withdrawal of ‘Illegitimate' Climate Review Guidance
Mar 27, 2015 | BNA Daily Environment Report
By Andrew Childers
Climate change falls “outside the scope” of the National Environmental Policy Act and shouldn't be a factor when federal agencies evaluate projects, six Senate Republicans told the White House. “We are deeply disappointed” that the administration is continuing down a path that is “both illegitimate and irresponsible,” the senators said in March 25... -
GOP Senators Object to Climate Planning Directive for Federal Agencies
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
Six Senate Republicans blasted the Obama administration’s proposal to change how federal agencies consider climate change in environmental impact reviews. The Republicans, led by Environment and Public Works Committee Chairman James Inhofe (R-Okla.), argued Thursday that the draft guidance from the White House is an illegal... -
Dem Measure Seeks to Protect Officials Who Mention Climate Change
Mar 26, 2015 | The Hill - E2 Wire
By Ben Kamisar
Sen. Bill Nelson (D-Fla.) is using the budget process to hit home-state Gov. Rick Scott (R) for allegedly prohibiting state workers from using the term “global warming.” Nelson offered an amendment to protect the ability of federal employees to talk about global warming. “We have all read news reports at the state level, at the local level, and... -
Murkowski Bill Would Streamline Permitting For Mines to Boost Critical Minerals Supply
Mar 27, 2015 | BNA Daily Environment Report
By Rachel Leven
Legislation that seeks to reduce U.S. reliance on foreign countries for critical minerals by speeding up the permitting process for new mines, among other things, was introduced March 26 by Sen. Lisa Murkowski (R-Alaska). The American Mineral Security Act of 2015 (bill number unavailable) is the first to be introduced this Congress on the... -
Murkowski Introduces Emboldened Minerals Bill
Mar 27, 2015 | E&E Daily News
By Manuel Quiñones
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) introduced legislation yesterday to boost the domestic supply of minerals and downstream technologies. The 29-page bill is meant to update the country's mineral policies, including concerning rare earth elements, used in numerous technological innovations. -
High Court Ruling on MATS Important Despite Mid-April Compliance Deadline
Mar 27, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's review of the Environmental Protection Agency's mercury and air toxics standards is still significant for power plants, even though the deadline for compliance with the standards is in three weeks, an attorney who represents the power industry said. William L. Wehrum, head of the Administrative Law Group... -
D.C. Circuit Questions Standing to Challenge EPA's Final Carbon Sequestration Waste Rule
Mar 27, 2015 | BNA Daily Environment Report
By Rebecca Wilhelm
Industry challengers to a final rule clarifying that carbon dioxide streams from geologic sequestration can be excluded from hazardous waste regulation “have serious standing problems,” a federal appeals court judge said during oral arguments March 26 (Carbon Sequestration Council v. EPA, D.C. Cir., No. 14-1046, oral arguments, 3/26/15). -
(ACC Mentioned) Uncertainty Clouds Key Rail Bills in Senate
Mar 26, 2015 | RailwayAge
By Frank N. Wilner
The road ahead for both bills, as they are currently written, could be problematic, with the crucial test being Senate floor action and then consideration in the House, which has made no progress on its own on either of the issues. -
(ACC Mentioned) STB Reauthorization and PTC Extension Bills Take Positive Steps Forward
Mar 26, 2015 | Logistics Management
By Jeff Berman
It was a busy day for railroad-related legislation yesterday, with the United States Senate Commerce, Science, and Transportation Committee approving two bills with a railroad focus by a voice vote. The respective bills are S. 808, the Surface Transportation Board Reauthorization Act of 2015 and S. 650, the Railroad Safety and Positive Train... -
North American Railroads Caught by Speed of Crude-Oil Collapse
Mar 27, 2015 | Bloomberg
By Thomas Black
The slowdown that North American railroad companies had been bracing for in crude oil shipments has turned into a rout, with volumes falling faster than executives had predicted. With energy companies scaling back drilling after prices for the commodity fell about 50 percent since July, industry executives and analysts anticipated that demand...
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(ACC Mentioned) Composite Panel Association Names Morrill Its New President
Mar 26, 2015 | Woodworking Network
The Composite Panel Association has hired Jackson Morrill as its new president, effective April 13.
Morrill replaces Tom Julia, who left the CPA last August.
Morrill has been serving as director for the American Chemistry Council (ACC) since 2010, where he managed the Formaldehyde Panel directing comprehensive state and federal advocacy initiatives, communications, third-party outreach and scientific studies on formaldehyde. He also represented ACC as a member of the Federal Wood Industries Coalition (FWIC), along with CPA and other key industry associations and stakeholders.
"We are pleased to have Jackson on board to lead our association. He brings a solid background of legislative and regulatory advocacy and technical expertise," said Grady Mulbery, CPA chairman and member of the executive search team. “I was greatly impressed with the caliber of the candidates and I believe we found an extraordinary fit both in terms of experience and personality with Jackson and he will complement the already strong CPA staff.”
"I am honored to join CPA and represent the North American composite panel industry. I look forward to continuing to build upon CPA’s strong industry reputation as a leader in advocacy and to support the membership and its initiatives," said Morrill.
An adjunct professor at Washington College of Law of American University, Morrill also practiced environmental law at Beveridge & Diamond, P.C. and was an environmental legal consultant at The World Bank. prior to his work at ACC.
Founded in 1960, the CPA represents the North American composite panel and decorative surfacing industries on technical standards, industry regulation, and product acceptance. CPA also operates a testing and certification program for industry products and was the first Third Party Certifier approved by the California Air Resources Board. - See more at: http://www.woodworkingnetwork.com/wood-market-trends/woodworking-industry-news/production-woodworking-news/Composite-Panel-Association-Names-Morrill-Its-New-President-297691911.html#sthash.6DfZccTM.dpuf
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(ACC Mentioned) Amazon Setback Pushes Drone Law focus to Europe
Mar 27, 2015 | The Global Legal Post
Seattle-based Amazon has commmitted itself to begin using drones to make its deliveries when it can and had hoped to pilot the technology in the US. But permission from the US Federal Aviation Administration took six months to come through, by which time the prototype was obsolete. Paul Misener of Amazon told a Senate Committee this week: 'Nowhere outside of the United States have we been required to wait more than one or two months to begin testing.'
Drone market worth billions of dollars
The UK is now looking like a more welcoming location to test the technology, says Dr Ravi Vaidyanathan, robotics lecturer at London's Imperial College. He said: 'For commercial growth, it probably does provide an opportunity because companies can do more [in the UK], so they can gauge more of the market and the likely impact.' The potential of the drone industry has been put at 'billions of dollars' by lawyer Komal K Jain, assistant general counsel at the American Chemistry Council.
Permissive rules in Europe
Gregory S Neal, professor of law and public policy at Pepperdine University, believes that new EU regulations are, possibly, a couple of years ahead of those being developed in the US. He said: 'If European regulators have their way, drone operations in the European Union are going to become very permissive, far outpacing American regulations.'
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Mar 26, 2015 | Chemical & Engineering News
By Susan J. Ainsworth
Surrounded by the snowcapped Rocky Mountains and home to numerous oil, gas, and mining companies, Denver proved a fitting site for the American Chemical Society national meeting and exposition, which spotlighted the “Chemistry of Natural Resources” from March 22–26.
Inspired by the area’s rugged landscape, some attendees challenged themselves on an indoor rock-climbing wall set up by the ACS Publications Division in the Colorado Convention Center’s expo hall.
In keeping with the meeting’s theme, three plenary lectures covered topics including the role of gas hydrates in energy transportation and storage; the impediments to producing advanced biofuels; and the challenges of supplying clean, safe water now and into the future.
Other national meeting highlights included The Kavli Foundation lectures presented by Theodore Betley, a professor of chemistry and chemical biology at Harvard University, and by Laura L. Kiessling, a professor of chemistry and biochemistry and director of the Keck Center for Chemical Genomics at the University of Wisconsin, Madison. [+]Enlarge Bertozzi scales a rock-climbing wall during an event on March 22 to celebrate the launch of ACS Central Science. Credit: Linda Wan/C&EN
In a reflection of the still-difficult job outlook for chemists, the on-site ACS Career Fair hosted 27 employers and 715 job seekers, who had access to 85 available positions. The online Virtual Career Fair attracted six employers and 918 job seekers, who were vying for 38 job openings.
In all, nearly 14,000 chemists and other visitors attended the meeting in Denver. More than 10,000 scientific papers were presented.
ACS Central Science—the society’s new open access, multidisciplinary journal—unveiled its first issue at the meeting. “Our vision for the journal is to showcase the centrality of chemistry,” said founding editor Carolyn R. Bertozzi, a professor of chemistry and molecular and cell biology at the University of California, Berkeley. “We are particularly excited to be the first fully open access journal at ACS, meaning we can reach the broadest audience possible.”
Also at the meeting, the ACS Board of Directors recognized the Organisation for the Prohibition of Chemical Weapons for its efforts in promoting the peaceful use of chemistry.
During the ACS Council meeting, candidates were chosen to run for major society offices this fall. Councilors selected two candidates for 2016 ACS president-elect: G. Bryan Balazs, an associate program leader at Lawrence Livermore National Laboratory, and Allison A. Campbell, associate laboratory director of Pacific Northwest National Laboratory’s Environmental Molecular Sciences Laboratory.
In addition, the council discussed the financial aspects of the society’s national meeting technical sessions and exposition, and provided advice on how to manage resources needed to support those activities.
The council voted to approve a $4.00 increase in ACS dues to $162 for 2016. It also approved establishment of ACS International Chemical Sciences Chapters in India and Taiwan.
The Committee on Budget & Finance reported on the society’s 2014 financial performance at the council meeting. Revenues totaled $499.0 million, and net contribution from operations reached $17.9 million, $4.2 million more than had been budgeted. The strong showing resulted from favorable performances from ACS information services and investments, as well as continued emphasis on expense management across the society. Despite these favorable operating results, the society’s financial position weakened in 2014, with unrestricted net assets declining $62.3 million, to $144.7 million at year-end. This decline was the result of a significant accounting charge related to the society’s two closed postretirement benefit plans.
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Chemical Safety Board Chairman Gives Up Leadership, Expected to Remain as Member
Mar 27, 2015 | BNA Daily Environment Report
By Robert Iafolla
Chemical Safety and Hazard Investigation Board Chairman Rafael Moure-Eraso resigned his post as head of the agency March 26, bowing to White House pressure to step down just three months before his five-year term was set to expire.
Nevertheless, Moure-Eraso will remain at the agency as a board member for an undetermined period of time, according to a congressional source familiar with the matter.
The CSB didn't respond to direct questions from Bloomberg BNA about Moure-Eraso staying on as a board member
There is precedent for such a move. In 1999, Paul Hill Jr. remained at the agency after stepping down as chairman, and his duties were divided among the other three sitting board members.
In recent weeks, lawmakers asked the White House to immediately remove Moure-Eraso to help rehabilitate the CSB, which has been plagued by low employee morale, personnel attrition and delayed investigations. But Moure-Eraso's resignation—and apparent intention to stay on as a board member—suggests the CSB's immediate future could be dominated by a disruptive leadership vacuum.
Bipartisan Push for Resignation
Moure-Eraso resisted a Republican campaign to unseat him from the CSB in 2014. But Democrats on the House Committee on Oversight and Government Reform joined their Republicans colleagues in calling for Moure-Eraso's ouster during a March 4 hearing. Fourteen committee members requested President Barack Obama's intervention in a March 18 letter to the White House.
The panel's top Democrat and top Republican said March 25 they expected Obama to ask for Moure-Eraso's resignation.
“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,” Reps. Jason Chaffetz (R-Utah) and Elijah Cummings (D-Md.) said in a joint statement.
Fractured Board
Recent controversy over CSB leadership spiked after Moure-Eraso and board member Manuel Ehrlich Jr. supported a sweeping measure in January that reworked the agency's internal governance structure to concentrate power in the chairman's office—an office that is now vacant.
Board members Mark Griffon and Richard Engler, meanwhile, have opposed the new governance structure and tried unsuccessfully to rescind the motion that bolstered the chairman's control over the CSB.
The reworked governance structure cleaved the board in two opposing factions, with Moure-Eraso and Ehrlich on one side and Griffon and Engler on the other.
Vanessa Allen Sutherland, the White House's choice to succeed Moure-Eraso at the CSB, and Kristen Kulinowski, nominee to join the board, await their hearings before the Environment and Public Works Committee and Senate confirmation votes. Sutherland is chief counsel for the Pipeline and Hazardous Materials Safety Administration. Kulinowski is a research staff member at the Science and Technology Policy Institute.
Barring swift Senate action, the board will be down to just Ehrlich and Engler after June 24, when Griffon's five-year term expires.
Chairperson Vacancy
The lack of a defined chairman combined with the divisions among board members creates uncertainty over who is running the CSB.
The White House “might” have the authority to name an acting chairman, according to a 2002 Justice Department opinion .
That opinion went on to say that the board may assign its executive and administrative authority to a single member or delegate the authority to take various actions to several members.
Given the split on the board, further conflict over how the agency will proceed in the absence of a chairman seems likely.
Moure-Eraso's Aides
Yet another unanswered question surrounding the CSB leadership is the fate of Moure-Eraso's top lieutenants, Managing Director Daniel Horowitz and General Counsel Richard Loeb.
In addition to asking the White House to remove Moure-Eraso, the bipartisan letter from the House oversight committee members took the unusual step of seeking the ouster of Horowitz and Loeb, two civil servants.
The lawmakers said that documents and testimony showed the mismanagement and toxic work environment at the CSB was driven by Moure-Eraso, Horowitz and Loeb.
“Even if the chairman leaves, it doesn't mean the agency's problems are fixed,” a former board member told Bloomberg BNA March 26. “But it's a start.”
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Obama's Chemical Agency Chief Resigns Under Pressure
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
The embattled chairman of the Chemical Safety Board resigned late Thursday after President Obama asked him to step down, a White House official said.
Obama sought Rafael Moure-Eraso’s resignation after intense pressure from both Republicans and Democrats in Congress following numerous allegations that he broke the law and was an ineffective, dysfunctional and hostile leader.
“It has been a privilege to serve the agency since June 2010,” Moure-Eraso said in an email to employees.
“My wishes are for the continued success and productivity of the board,” he continued. “Good luck to the board and the staff in all your projects at the CSB. I am forever grateful for the hard work of the agency that has led to so many successes over the past five years.”
The White House started to tell lawmakers Wednesday evening that Obama would seek Moure-Eraso’s resignation.
Moure-Eraso’s detractors say that he illegally conducted official business on private email accounts, retaliated against whistleblowers with the CSB, tried to shut down dissent, acted to consolidate the board’s power within his position and lied to Congress, among other allegations.
Under his leadership, the CSB, which investigates chemical incidents, earned the title of the worst place to work in the federal government among agencies its size.
Members of the House Oversight Committee have asked Moure-Eraso to step down since at least June 2014 and held three hearings on his leadership, most recently earlier this month.
Leaders of the Environment and Public Works Committee, who have also sought Moure-Eraso’s removal, cheered the news and thanked Obama.
“During his time serving a chairman, we believe he violated his oath of office and violated the law,” Sens. Jim Inhofe (R-Okla.) and Mike Rounds (R-S.D.) said in a statement. “Moure-Eraso’s leadership created an environment of dysfunction within the agency and it was no longer operating with credibility in conducting meaningful investigations of industrial incidents,” they said.
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Under Pressure, Chemical Safety Head Resigns
Mar 26, 2015 | National Journal
By Jason Plautz
Facing pressure from the White House and members of Congress from both parties, the head of the Chemical Safety Board is resigning effective Thursday.
Chairman Rafael Moure-Eraso announced his resignation to staff in an email Thursday evening; the news was confirmed by CSB. He led the agency since 2010, a tenure dogged by internal turmoil and allegations that he mismanaged and overstressed the staff.
Moure-Eraso had just three months left in his five-year term at CSB, the independent agency tasked with investigating chemical incidents and issuing recommendations.
"It has been a privilege to serve the agency since June 2010," Moure-Eraso wrote to the staff. "My wishes are for the continued success and productivity of the Board. Good luck to the Board and the staff in all your projects at the CSB. I am forever grateful for the hard work of the agency that has led to so many successes over the past five years."
The White House asked Moure-Eraso to step aside, which the administration communicated to lawmakers this week.
A spokesman for CSB said that Moure-Eraso resigned his post as chairman, but will remain a board member until mid-April. That leaves the makeup of the board at four members for five open spots. It was not clear Thursday who would serve as chairman.
Moure-Eraso faced increasing pressure from the Hill over his management of the agency and charges that he stood in the way of EPA inspector general investigations. Recently, an EPA IG report found that Moure-Eraso and two top executives used personal email accounts to conduct official business.
Fourteen members of the House Oversight Committee called on Obama to oust Moure-Eraso last week, as did two Republican members of the Senate Environment and Public Works Committee. The letter from Sens. Jim Inhofe and Mike Rounds said CSB "can no longer continue to operate credibly under this leadership."
In a statement Thursday, Inhofe and Rounds, who heads the Superfund, Waste Management, and Regulatory Oversight subcommittee, applauded the White House for requesting the resignation and urged quick action to fill the board.
"During his time serving as chairman, we believe he violated his oath of office and violated the law," Inhofe and Rounds said. "Moure-Eraso's leadership created an environment of dysfunction within the agency and it was no longer operating with credibility in conducting meaningful investigations of industrial incidents."
In a joint statement issued Wednesday, Oversight Committee chairman Jason Chaffetz and ranking member Elijah Cummings said they were "pleased that the president has recognized the importance of making key changes with the Chemical Safety Board."
"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 wrote. "We remain hopeful that progress will continue to be made with regards to improving leadership and morale issues within the CSB."
The Oversight Committee also charged that a CSB employee had been removed from an outside contract and demoted after working with a consulting firm on a report that criticized management at the agency. There have also been questions about a board order that passed in a late-night January meeting that wiped away several management reforms and appeared to consolidate power with the chair, although the member who introduced it said it was a streamlining measure.
Industry and labor observers also said that under Moure-Eraso, the agency had faltered on its core work of investigating and preventing chemical accidents. Until recently, there was a hefty backlog of open investigations, although CSB has issued eight reports in the past nine months and now has just six open investigations (three others were eliminated without a final report). Still, critics say the CSB has not been as quick or as nimble as it had in the past.
Several investigators left under Moure-Eraso, citing a toxic work environment and a management style that discouraged open discussion and debate.
The White House this month nominated Vanessa Allen Sutherland, the chief counsel at the Pipeline and Hazardous Materials Safety Administration, to chair the CSB for a term that would begin in June.
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Democrats Denounce Federal Fracking Rule As Too Weak to Ease Concerns on Pollution
Mar 27, 2015 | BNA Daily Environment Report
By Alan Kovski
New federal regulations on hydraulic fracturing for oil and gas operations were attacked from both sides of the aisle but especially the Democratic side during a March 26 congressional hearing.
On the same day, another attack came in the form of a lawsuit filed by Wyoming against the rule.
The Bureau of Land Management's new rule to update regulations for hydraulically fractured wells on federal and Indian lands is ill-advised by itself and is combined with such things as proposed new fees and increased royalty rates, said Rep. Doug Lamborn (R-Colo.), chairman of the House Natural Resources Subcommittee on Energy and Mineral Resources.
The policies are “driving away the revenues that help justify the existence of your agency,” Lamborn told BLM Director Neil Kornze.
Rep. Raul Grijalva (D-Ariz.), ranking member of the full committee, said he agreed with Republicans that the new fracking rule was “absolutely terrible,” but for opposite reasons.
“Quite frankly it is an affirmation of the status quo,” Grijalva said.
Concerns Not Allayed
Interior Secretary Sally Jewell has repeatedly said—as her predecessor Ken Salazar said—that the fracking rule was needed to assure the public that oil and gas development is being done safely. Kornze repeated that idea during the hearing.
“The confidence that this brings to the American public, the protection that this brings to groundwater and other resources—we believe it's worth it,” Kornze said.
But Democrats' remarks during the hearing indicated no assurance or confidence had been achieved.
“Unfortunately, now that the BLM feels it has accomplished something, the chance to write strong rules that truly protect our water, our air, public health and our lands is gone,” Grijalva said.
Rep. Matt Cartwright (D-Pa.) said of the new regulations, “I don't think they come close to covering the concerns that many of my constituents have about the impacts of fracking on their communities, particularly the impact on water supplies.”
Similarly, Rep. Jared Polis (D-Colo.) said, “I have to say I was somewhat disappointed by their inadequacy.”
Closed Tanks, Private Rights
The rule updated requirements for well integrity testing, waste fluid management and chemical disclosure. It mandated, in most cases, use of covered tanks rather than open pits for holding waste fluids (55 DEN A-14, 3/23/15).
“Even for the closed tank requirements, most companies on federal lands already do this,” Rep. Alan Lowenthal (D-Calif.), ranking member of the subcommittee, said.
Kornze clarified one point on the scope of the rule. He said he was mistaken two days earlier when he said it would also apply to private mineral rights under national forests, such as in the Allegheny National Forest in the district of Rep. Glenn Thompson (R-Pa.) (57 DEN A-15, 3/25/15).
“I was wrong,” Kornze conceded.
“Case law has been very clear on that,” Thompson said.
Wyoming Sues Interior
Wyoming filed suit March 26 in the U.S. District Court for the District of Wyoming to charge that the fracking rule exceeded the BLM's statutory jurisdiction, conflicted with the Safe Drinking Water Act and unlawfully interfered with Wyoming's fracking regulations.
The state said the rule exceeded the jurisdiction of the BLM and the Interior Department under the Federal Land Policy and Management Act and the Mineral Leasing Act.
Wyoming told the court neither of those laws authorizes the BLM or Interior, which includes the BLM, to regulate underground injection, a process that can be regulated by the Environmental Protection Agency and states under authority of the Safe Drinking Water Act.
The Underground Injection Control (UIC) program of the Safe Drinking Water Act can apply to fracking fluids containing diesel fuel. Other fracking fluids have been exempted by Congress from the UIC program.
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Wyo. Launches Legal Fight Against BLM Fracking Rule
Mar 26, 2015 | E&E News PM
By Ellen M. Gilmer
Wyoming today became the first state to formally challenge the Obama administration's new rule for drilling on public and Indian lands, filing a lawsuit in U.S. District Court for the District of Wyoming that calls the regulation an overreach of federal authority.
The suit is the second legal challenge since the rule's unveiling less than a week ago. Industry groups sued last Friday, arguing that the Bureau of Land Management's three-year rulemaking process relied on insufficient data and resulted in regulations that duplicate state law.
The rule, which requires disclosure of chemicals used in hydraulic fracturing and regulates well construction and wastewater management, has drawn heated criticism from all sides over the past week. Industry complains that the rule is an expensive threat to jobs and energy security, while states and tribes argue that fracking regulation is their turf, and environmentalists say the new requirements do little to protect the air, water and land surrounding drilling operations.
With more than 4 million acres of federal land hosting oil and gas production, Wyoming is among the Western states most affected by BLM regulations, said BakerHostetler attorney Mark Barron.
"Wyoming's interest in this lawsuit is obvious," Barron, who is representing industry in the other legal challenge, said in a statement yesterday. "The State's leadership in regulating oil and gas development, and particularly the process of hydraulic fracturing, disproves the myth of the regulatory gap upon which Interior's final rule is premised."
In the state's petition for review filed yesterday, Senior Assistant Attorney General Michael McGrady argues that BLM exceeded its authority by regulating fracking as a form of underground injection, despite a provision of the Safe Drinking Water Act that designates U.S. EPA as the sole regulator of "underground injection control" and a provision of the 2005 Energy Policy Act that exempts hydraulic fracturing from EPA's oversight.
"If Congress intended ... to create special BLM or Interior Department programs for regulating underground injections outside the Safe Drinking Water Act, Congress would have said so, as it has in other environmental regulatory contexts," the filing says, arguing that fracking should be left to the states to regulate.
Gov. Matt Mead (R) last week touted his state's regulations for drilling as some of the strictest in the nation and slammed BLM for being "late to the game" and establishing a rule that "complicates compliance." Wyoming's rules for fracking chemical disclosure are stricter than those of most other producing states.
Wyoming's lawsuit comes just after the Independent Petroleum Association of American and Western Energy Alliance filed a similar challenge last week, arguing that the rule is an abuse of power that is "not properly tailored to achieve a legitimate government purpose."
Both lawsuits ask the district court to vacate the rule.
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In New York State, Fracking Ban Fuels Secession Talk
Mar 26, 2015 | LA Times
By Tina Susman
From this village of dairy farms and friendly diners, Carolyn Price can see across the border into Pennsylvania, and it is a bittersweet view. The rolling hills a few miles away are as green as the ones here, and the Susquehanna River is icy and beautiful on both sides of the state line as it meanders toward the Atlantic.
Price sees something else, though: towns brimming with money extracted from the gas-rich Marcellus Shale, where the high-pressure drilling method known as hydraulic fracturing, or fracking, has spurred an economic boom.
It is a different story here on the New York side, where Gov. Andrew Cuomo in December declared a statewide ban on fracking — one of only two in the country — saying he was not convinced it is safe.
The national debate over fracking, which critics say can pollute groundwater and endanger public health, heated up last week when the Obama administration announced the first-ever federal regulations on the practice. But nowhere is fracking as heated an issue as in the stretch of New York known as the southern tier, where Cuomo's ban has spurred talk of secession.
Political leaders like Price, Windsor's town supervisor, say secession is not such a farfetched idea, and they are gathering feedback from constituents to see whether there is support for a breakaway movement.
"I think it really has to be looked at seriously," said Price, who has watched her town of 6,200 wither as locals move away in search of jobs. "We only need to drive a few miles, and we can see ourselves." She nods toward Pennsylvania, where once-depressed towns now boast bustling businesses catering to workers from companies like Chesapeake Energy, Houston-based Cabot Oil and Gas, and EOG Resources, which used to be part of Enron.
"The natural gas is the only thing that's truly going to save this area," Price said.
Windsor is one of about 15 towns in New York's southern tier where secession is being eyed, if not as an attainable goal than as a radical proposal aimed at grabbing state lawmakers' attention and forcing them to take notice of the region's desperation.
For years, the state has vowed to create economic opportunities in the southern tier, once home to factories that produced everything from cigars to computers. For years, though, nothing has turned around a decline that is evident in the shuttered businesses and "for sale" signs dotting the rural landscape.
Broome County, which includes Windsor, is the southern tier's most populous county. Its biggest city and the county seat, Binghamton, had 80,000 residents in 1950. Today, it is home to 47,000 people. The fracking ban came on the same day that the state rejected the area's bid for two casinos, exacerbating locals' despair. Obama administration's new fracking rules criticized by both sides
The Marcellus Shale covers about 104,000 square miles, from New York south to parts of West Virginia and Ohio, and it is believed to be the largest source of natural gas in the United States. Energy companies have been drilling into it and other U.S. shale for decades. Only in recent years have technological advances enabled them to reach previously inaccessible deposits by blasting water, sand and chemicals into the earth to create new cracks.
Energy companies say hydraulic fracturing is no more hazardous than many traditional extraction techniques when proper precautions are taken. Critics say the technique brings a host of health and environmental problems, including seepage of chemicals into groundwater and earthquakes in areas where rock is being fractured.
In drought-prone areas such as California, questions have been raised about the millions of gallons of water needed in fracking when residents face rationing. Nonetheless, only Vermont and New York have banned fracking.
Cuomo's ban came after years of study by the state's Department of Health, which cited "critical information gaps" in potential hazards of fracking.
"I have asked myself, 'Would I let my family live in a community with fracking?'" Howard Zucker, the department's acting commissioner, said as he presented the results of a 184-page report to state lawmakers on Dec. 17. "The answer is no. I therefore cannot recommend anyone else's family to live in such a community either."
Cuomo cited the study when he announced the fracking ban. "I'm not going to put the health at risk for jobs," he said. "I'm not going to make that choice. I'm not going to make it in the southern tier. I'm not going to make it anywhere in the state." Agencies admit failing to protect water sources from fuel pollution
Within days, Jim Finch, the town supervisor of Conklin, about 15 miles from Windsor, had begun mentioning secession as an option. At first, the idea was seen as a joke, but the distress among locals who had counted on natural gas to revive their communities was serious.
"The southern tier is desolate," Finch told Binghamton's WBNG-TV last month, even as he conceded that the chances of secession were remote. Still, state Sen. Thomas Libous, a Republican who represents the region, has been asking constituents their views on secession in an online survey.
The Upstate New York Towns Assn., which represents southern tier communities and is headed by Price, plans to review results from Libous' survey once they're tabulated and decide what to do next. The organization was formed in July 2013 in response to what regional leaders say is the state's tendency to make decisions that favor New York City and other so-called downstate areas.
Chief among those decisions has been the fracking ban, Price said. Local disappointment was sharpened by the knowledge that friends living a few miles away in Pennsylvania are thriving since energy companies began fracking there.
"It's hard for them to accept that the line on the map makes such a huge difference," said Price, adding that New York's taxes, which are higher than Pennsylvania's, add to residents' ire.
The crowd at Kennedy's Diner one recent lunch hour reflected the local frustration. As they devoured bowls of soup, heaping sandwiches and plates piled high with cheese-covered French fries, customers said they doubted anyone in the state capital would take seriously the secession threat. At the same time, they said they saw few economic options other than fracking, even if it carried some risk.
"My roots are here, but I see how people are struggling, and it's just so depressing," said Lisa Hayes, who hoped to lease 40 acres she owns to energy companies. Instead, she is moving to Florida in hopes of finding work as a medical assistant.
Her father-in-law, Donald Hayes, is a local tax preparer who has seen first-hand his neighbors' financial struggles. "I tell people to get the heck out of here," Hayes said.
He echoed others in the diner who said they believed the fracking ban was rooted more in politics than in safety concerns. Cuomo, a Democrat, has his eye on the White House and does not want to anger liberals, Hayes said.
At another table, farmers Bill and Lisa Titus said they had not seen evidence of fracking's dangers to support the ban. It's better to save local economies than leave them to die based on what might happen, they said
Dan Burdick, a local businessman eating lunch with them, agreed. "Stuff happens," Burdick said. "Be safe, but you've got to move forward. We need to find something to stand on our feet."
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Supreme Court Likely to Review EPA Carbon Rule for Power Plants, ABA Speaker Says
Mar 27, 2015 | BNA Daily Environment Report
By John Henry Stam
The U.S. Supreme Court is likely to address climate change again when the Environmental Protection Agency's Clean Power Plan is challenged, a speaker said at an American Bar Association meeting March 26.
The Supreme Court is receptive to granting review to climate change cases, Peter Keisler of Sidley Austin LLP said at the annual spring conference of the ABA Section of Environment, Energy and Resources in San Francisco.
In light of the unusual and important underlying issue, the Supreme Court is likely to grant review no matter which party prevails in the U.S. Court of Appeals for the District of Columbia Circuit when challenges are brought after the rules are finalized, Keisler said.
The EPA's biggest challenge in defending the new rule, as it appears in the current proposed rule state, is it seeks aggressive changes, Keisler said.
The greenhouse gas reduction targets are more than can be achieved by reductions at power plants alone, he said. The EPA is pushing states to change the mix of energy producers using a provision of the Clean Air Act not used before, he said.
The question, Keisler said, is whether the Supreme Court will see this as an intended use of the flexibility of the Clean Air Act similar to its 2007 decision in Massachusetts v. EPA or whether it's seen as the EPA trying to expand its authority beyond that contemplated in the act similar to its 2014 decision in Utility Air Regulatory Group.
The EPA's Clean Power Plan (RIN 2060-AR33), proposed in June, sets a unique carbon dioxide emissions rate for each state. States would develop their own plans to comply with the rule.
The EPA expects the proposal would reduce carbon dioxide emissions from existing power plants by 30 percent from 2005 levels when it's fully implemented in 2030.
A final rule is expected this summer.
Supreme Court Tackles Climate
Three Supreme Court cases in the last decade addressed climate change issues, Keisler said.
In 2007, the Supreme Court held the Clean Air Act's definition of pollutant is broad enough to include greenhouse gases (Massachusetts v. EPA, 549 U.S. 497, 63 ERC 2057 (2007); 63 DEN A-3, 4/3/07).
In 2011, the Supreme Court held that the EPA authority under the Clean Air Act to regulate greenhouse gases displaced federal common law nuisance claims addressing climate change (American Electric Power Co. v. Conn., 131 S. Ct. 2527, 72 ERC 1609, 2011 BL 161239 (2011); 119 DEN A-5, 6/21/11).
In 2014, the Supreme Court ruled the EPA exceeded its authority under the Clean Air Act in establishing stationary source emissions limits based on greenhouse gas emissions alone (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 78 ERC 1585, 2014 BL 172973 (2014); 121 DEN A-1, 6/24/14).
Decisions Weren't Granted Review
The decisions, Keisler said, weren't granted review based on splits in the appeals court circuits, but the Supreme Court considered the climate change issues important.
Keisler said the first two cases found the EPA had broad power under the Clean Air Act to regulate climate change, and the third found that the EPA is limited in the tools that the Clean Air Act provides and doesn't give authority for the EPA to change them.
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Lessons From the 'Vote-A-Rama'
Mar 27, 2015 | E&E Daily News
By Nick Juliano
Sometime after 3 o'clock this morning, the Senate adopted its budget resolution for next year, 52-46, after a unique, marathon session that featured dozens of votes on everything from climate change policy to health care to sanctions on Iran.
For procedural reasons, the amendments were all vaguely worded and nonbinding -- which limits somewhat their usefulness as guides to future legislation. But over the course of the 15 hours senators spent casting votes yesterday and this morning, some clear lessons emerged for the marquee energy and environment fights to come later this year. They are: 1. Republicans need to keep brainstorming if they want to block EPA's Clean Power Plan this year.
One consequential vote yesterday tested a rifle-shot strategy Republicans are developing in an effort to subvert the Obama administration's plan to slash carbon dioxide emissions from the power sector -- and showed that critics of the climate plan may still need to hone their strategy.
Senate Majority Leader Mitch McConnell (R-Ky.) has spent this month trying to convince state governors to refuse to go along with the soon-to-be-finalized rules from U.S. EPA designed to limit greenhouse gas emissions from existing power plants. An amendment last night sought to test the Senate's views on that argument, but it delivered some bad news for those hoping to undermine the rule later this year.
McConnell's nonbinding amendment was meant to prevent the administration from denying highway funds to states that refuse to submit plans to hit their emissions reduction targets, and it was added to the budget resolution on a 57-43 vote. But while budget rules require a simple majority for amendments to be adopted, most binding legislation would have to clear 60 votes to overcome a Democratic filibuster. (The exception is a privileged resolution brought under the Congressional Review Act, which Congress is likely to pass once the EPA regulations are finalized, but that would surely be vetoed by President Obama.)
Republicans -- and Democrats critical of the Clean Power Plan -- have long known they would be unable to round up 60 votes this year to completely eliminate the regulations, and yesterday's vote on the McConnell amendment was seen as a test of other approaches to undermine what critics see as the Obama administration's "war on coal." But it attracted just three Democrats -- Sens. Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota -- fewer than backed an earlier GOP amendment aimed at preventing a carbon tax from being imposed (E&ENews PM, March 26).
After coming up short on his amendment, McConnell apparently decided not to pursue an even further-reaching proposal he had put forward alongside Sen. Rob Portman (R-Ohio) that was aimed at allowing states to opt out of the climate rules altogether if they could demonstrate a significant drag on the economy or threat to electric reliability.
"I don't know, at the end of the day, if there are 60 votes for any of these alternatives," Portman acknowledged in a brief interview. "This is one alternative that tells states if they feel this is a good plan for them, they should be able to implement it. But my hope is they go back to the drawing board at EPA and come up with a plan that doesn't have this highly negative impact on my state."
Sen. John Barrasso (R-Wyo.), another leading critic of the EPA rules, acknowledged that part of the goal this week was to find ideas that could garner 60 votes. But he said he was not giving up hope; to emphasize his point, Barrasso cited an overwhelming 392-37 vote in the House yesterday on a health care bill that supporters just 24 hours earlier feared would be much closer.
"You go back home, and you hear what the impacts are from people in your communities, and people make decisions," he said. "And you have to see how it is on the day of that vote -- on any vote. ... It's hard to know what happens until the vote is actually taken." 2. But Obama's "Waters of the United States" rule may be in big trouble.
While there is more work to do on climate change, Republicans earlier this week may have demonstrated a filibuster-proof majority in favor of overturning another of EPA's most controversial rules.
"That's why I was happy with my 'Waters of the U.S.'" amendment, Barrasso said.
The amendment was seen as a referendum on the agency's rule meant to clarify the Clean Water Act's jurisdiction, which environmentalists say is meant to spell out the reach of a law that leaves too many streams and wetlands unprotected, but which businesses and farmers pan as an example of government overreach. It passed 59-40, but Sen. Ted Cruz (R-Texas), who would have voted for it, was absent, meaning opponents of the rule have a clear shot at rounding up 60 votes.
Critics picked up an extra supporter Wednesday in Sen. Amy Klobuchar (D-Minn.), who two years ago voted against a similar measure. If Klobuchar would lend her support later this year to legislation or an appropriations rider that would block the rule, it could garner the necessary 60 votes in the Senate, and a majority of House lawmakers already are on record against the rule.
Klobuchar said yesterday she is not necessarily on board with trying to block the proposal outright, but she also did not rule out supporting a rider to do so.
"I look at each thing on a case-by-case" basis, she told E&E Daily. The Barrasso amendment "was kind of a broad thing, and I've always said they need to make some changes to the rule." 3. Democrats believe they have the upper hand on climate science -- and they'll never let the issue drop.
This week allowed Democrats to add to the tally of votes they've forced this year on questions surrounding the cause of and response to climate change, and they seem to be gaining support for the idea that it is caused by human activity and requires immediate action to address.
An amendment from a coalition of liberal and moderate Democrats provided a new high-water mark of support for action on climate change, albeit one that is still well short of what is needed to actually change the law.
Democratic Sens. Michael Bennet of Colorado and Sheldon Whitehouse of Rhode Island joined Heitkamp and Manchin in sponsoring the amendment, which encouraged legislation "addressing human-induced climate change through increased use of clean energy, energy efficiency, and reductions in carbon pollution." It passed 53-47, with all Democrats on board and seven Republicans: Sens. Kelly Ayotte of New Hampshire, Susan Collins of Maine, Lindsey Graham of South Carolina, Dean Heller of Nevada, Mark Kirk of Illinois, Lisa Murkowski of Alaska and Portman.
Kirk, Ayotte and Portman face potentially difficult re-election campaigns in 2016 in states that twice voted for Obama; Graham, who is pondering a White House bid, was part of a small group of senators seeking to pass climate legislation in 2009 and 2010.
Separately yesterday, Sen. Bill Nelson (D-Fla.) offered an amendment keying off a controversy in his home state, where Gov. Rick Scott (R) allegedly directed state officials to stop using the words "climate change" or "global warming." Nelson said his amendment would have prevented any similar "muzzling" of federal officials, but Republicans raised a point of order against the amendment as too prescriptive under budget rules. That required 60 votes to overcome, but the amendment came up short, 51-49. Still, it won support from Republicans Ayotte, Collins, Portman and Sens. Bob Corker of Tennessee and Marco Rubio of Florida.
A day earlier, Sen. Bernie Sanders (I-Vt.) offered an amendment encouraging legislation to implement "policies that reduce emissions by the amounts that the scientific community says are needed to avert catastrophic climate change," but it fell short 49-50, without support from Heller, Murkowski or Manchin.
This week's amendments follow a series of votes on the Keystone XL bill in January that demonstrated majority support for the idea that humanity "significantly" contributed to climate change. Democrats are encouraged by the progress -- to a point.
"That some Republicans are voting to tell us what the scientific community has been telling us for years, and that we got an additional vote or two is a good thing," Sanders said in an interview. "But obviously, the vast majority of Republicans refuse to recognize reality, and that's a little distressing."
Sen. Brian Schatz (D-Hawaii), a leader on climate issues, said he was happy to see "at least a meaningfully sized group of Republicans who are on the right side of facts" when it comes to climate change, and promised that Democrats would keep an intense focus on the issue.
"We're going to keep pushing on this issue because it shouldn't wax and wane with whatever the pundits are currently fixated on," Schatz said yesterday. "This is a planetary emergency, and we're treating it as such, which means we're going to keep working on it until the United States takes the leadership role that it must take."
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McConnell Amendment Slows EPA Regulations
Mar 27, 2015 | The Hill - Floor Action
By Jordain Carney
The Senate passed an amendment Thursday night that makes it harder for the White House to enforce environmental regulations. Senators voted 57-43 on the proposal by Majority Leader Mitch McConnell (R-Ky.).
The amendment blocks the administration from withholding highway funds if a state doesn't submit an implementation plan for a proposed Environmental Protection Agency (EPA) regulation. Democratic Sens.
Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin (W.Va.) switched sides and voted with Republicans.
McConnell suggested his amendment was about protecting states from EPA overreach.
“It says that Washington bureaucrats shouldn’t be allowed to punish innocent Americans by threatening the roads and bridges they use,” the Kentucky Republican said, “just because a citizen’s state may take a wait-and-see approach … as courts rule on EPA regulations.”
McConnell added the EPA regulations “would threaten the middle class without having a meaningful impact on the global climate anyway.
”The Kentucky Republican's amendment is about rule requiring states to submit implementation plans to the EPA as part of its clean-power push. As part of the implementation plans, states are supposed to explain how they will meet EPA-calculated emission targets for a state.
Democrats, however, said McConnell's amendment would "undercut" President Obama's plan to reduce carbon emissions.
"[The amendment] seeks to undercut the president's clean power plan to address climate change and reduce carbon pollution," Sen. Ed Markey (D-Mass.) said ahead of the vote. While the vote is non-binding, it does get senators on the record. Thursday's vote follows a letter McConnell sent to governors last week.
He reassured governors they would be on solid legal ground if they didn't formulate plans to implement the EPA's carbon limits. In the letter, McConnell said the EPA is overstepping its authority, adding it doesn't have the authority under the Clean Air Act to force states to take most of those actions.
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The Hidden Benefits of Cutting Coal Pollution, and Why They Matter
Mar 26, 2015 | The Washington Post
By Puneet Kollipara
A key Environmental Protection Agency effort to cut power plant emissions of toxic metals and gases is up in the air, so to speak. Industry groups have asked the Supreme Court to overturn the rule, arguing that the EPA should have weighed the costs of regulating those pollutants in deciding whether taking any action at all was “appropriate and necessary” under the law. And at first blush Wednesday, the court’s four-member conservative wing seemed sympathetic to that argument.
This procedural question that’s at stake in the lawsuit — whether the EPA erred in not considering costs from the very beginning — also helps highlight a more general concern about the rule among industry groups. They’re worried that the rule might cost billions of dollars a year while yielding far fewer benefits. The EPA counters that the rule’s benefits would outweigh its costs by at least a factor of four and possibly as high as a factor of 10.
Who’s right? In part, it depends on what you count as a benefit. But it also depends on another factor that is often overlooked: Some benefits of cutting toxic pollutants aren’t quantifiable at all, because we don’t have the data or the procedures needed to calculate them. That showcases just how tough it can be for regulators to determine a policy’s true value.
The idea of cost-benefit analysis isn’t new or controversial, including at the EPA. Any time the agency proposes a major policy, it typically publishes its best estimates of the policy’s benefits and costs. When it comes to costs, we might think of how the policy would influence jobs, prices and production in the regulated industries.
Calculating a policy’s benefits, on the other hand, can be tougher. We’re talking about avoided deaths, avoided illnesses, as well as the aesthetic value of cleaner air. We can get a sense of how many fewer illnesses and deaths a policy might yield — at least for the pollutants we know a lot about.
But how do you quantify the dollar value of those benefits so you can weigh them against costs? How do you put a dollar figure on a human life, or on the economic productivity gains and health-care savings from one less heart attack, or on the aesthetic value of cleaner air? It’s not a straightforward task at all, as many scholars have pointed out.
And that challenge is front-and-center in the broader policy debate over this rule. The rule in question, the Mercury and Air Toxic Standards, would require power companies to install technologies that clean up toxic metals (such as mercury, arsenic and nickel) and toxic gases like hydrogen chloride, which transforms into hydrochloric acid, from power plants’ air waste.
The power and coal industries are calling this rule a waste of money. They cite the EPA’s own studies in saying the benefits would be just $4 million to $6 million a year, and only from cutting mercury emissions, which would reduce damage to children’s developing brains.
The remainder of the rule’s $37 billion to $90 billion in annual benefits, the EPA says, will come from reductions in soot pollution, which can damage the heart and lungs. The rule itself doesn’t target soot, but the devices that clean up toxic metals and gases would also cut out a lot of soot.
Industry groups aren’t denying that soot pollution is dangerous. Rather, they’re arguing that the benefits of cutting it don’t matter to whether the EPA should have moved forward with a costly rule that doesn’t even target soot. Chief Justice John G. Roberts Jr. appeared sympathetic to that view during oral arguments. The rules’ defenders would counter that benefits are benefits, no matter where they come from.
Suppose we ignore the benefits of soot reductions and focus only on the toxic pollutants at hand, though. The rule’s benefits are still probably much higher than $4 million to $6 million a year. Here’s why: Other metal and gas emissions are also known to be harmful (we know that these substances are toxic), and cutting mercury emissions does more than just reducing damage to developing brains. But we don’t have good enough data or methods to put dollar figures on those benefits.
That same problem applies to other potential benefits the EPA says the rule would bring, such as increased forest yields, visibility improvements, reduced acid deposits in ecosystems and the resulting benefits to wildlife.
As a result, instead of giving a bad numerical estimate of these benefits, the EPA is giving no estimate at all. “EPA believes these unquantified benefits could be substantial,” the agency’s study said. And that’s one of many reasons the rule’s defenders, such as the Environmental Defense Fund, are calling baloney on the industry’s own allegation of baloney. These points may or may not help the EPA overcome its key challenge involving when it should have considered costs. But it does showcase a key limitation of the cost-benefit paradigm that has governed how we assess our policies’ economic value.
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Energy Efficiency Bill Passes Senate in Early Morning
Mar 27, 2015 | The Hill - E2 Wire
By Jordain Carney
Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) squeaked in a vote early Friday morning on their energy efficiency bill after the Senate ended an hours-long marathon on the budget.
The Energy Efficiency Improvement Act was passed by voice vote, with the two senators the only two on the floor after 4 a.m. Friday.
The legislation focuses on improving energy efficiency in buildings, while also exempting thermal storage water heaters from upcoming energy standards.
The senators' move follows a years-long push to get energy legislation passed, with a more expansive bill introduced earlier this month, called the Energy Savings and Industrial Competitiveness Act.
The water heater provision is in both bills. Previous energy bills from the bipartisan duo have received broad support but been bogged down in political fights that prevented passage. Last year, a bill almost made it to the Senate floor for a vote. But Republicans blocked it after then-Majority Leader Harry Reid (D-Nev.) refused to allow a variety of amendments to the bill, including one to approve the Keystone XL pipeline.
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Republican Senators Seek Withdrawal of ‘Illegitimate' Climate Review Guidance
Mar 27, 2015 | BNA Daily Environment Report
By Andrew Childers
Climate change falls “outside the scope” of the National Environmental Policy Act and shouldn't be a factor when federal agencies evaluate projects, six Senate Republicans told the White House.
“We are deeply disappointed” that the administration is continuing down a path that is “both illegitimate and irresponsible,” the senators said in March 25 comments on draft guidance that advises federal agencies on when and how to consider climate change impacts in projects undergoing National Environmental Policy Act review.
Sens. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, John Boozman (R-Ark.), John Barrasso (R-Wyo.), Deb Fischer (R-Neb.), Jeff Sessions (R-Ala.) and Dan Sullivan (R-Alaska) called on the White House to withdraw the draft guidance because adding a climate change review would delay job growth by opening projects up to additional litigation and “endless and meaningless analyses.”
The Republicans said no single project can be demonstrated to have a significant impact on global climate change, and forcing reviews to perform the analyses would only cause unnecessary delays.
“Attempts to meet this mandate will be very difficult, irresponsibly wasting agency resources and engendering litigation,” the senators said.
The White House Council on Environmental Quality issued its revised draft guidance on incorporating climate change considerations into National Environmental Policy Act reviews in December.
The draft guidance advises federal agencies to consider the climate impact of any action that would increase greenhouse gas emissions by the equivalent of 25,000 metric tons of carbon dioxide annually when reviewing projects.
The draft guidance said evaluations of climate change impacts with less than 25,000 metric tons of carbon dioxide equivalent annually aren't warranted unless the analysis is “easily accomplished.” Additionally, the draft guidance directs federal agencies to focus on climate-resilient alternatives when evaluating projects (244 DEN A-8, 12/19/14).
The comment period on the draft guidance closed March 25.
Gas Industry Opposes Analysis
Natural gas producers also called on the administration to withdraw its draft guidance because natural gas plays a significant role in President Barack Obama's climate action plan.
The EPA's proposed carbon dioxide emissions standards for new and existing power plants both rely significantly on cheap natural gas displacing dirtier coal-fired generation. Costly and time-consuming environmental reviews could delay investment in the infrastructure necessary to achieve that goal, natural gas producers said.
“The President's Climate Action Plan is predicated in part on using clean, domestically-abundant, affordable natural gas resources to drive cleaner generation, support renewables, and sustain the affordable energy deliverability needed for economic growth.
“To meet the nation's goals on energy independence and reducing GHG emissions, in part by the increased use of natural gas-fired generation, the federal government has encouraged the timely construction of natural gas-related infrastructure,” the Interstate Natural Gas Association of America said in its comments. “The guidance will contradict this policy by making the infrastructure necessary to use natural gas more difficult and expensive to construct.”
Agencies Already Have Needed Authority
The Natural Gas Council said the draft guidance is unnecessary because federal agencies already have the authority to tailor NEPA reviews, which could include climate change impacts.
“The CEQ guidance does not recognize a federal agency's existing discretion to tailor NEPA reviews to address climate change, including the possibility that an agency may not consider climate change at all if it is too removed, unforeseeable, or speculative in relation to the proposed project,” the Natural Gas Council said in its comments.
The Environmental Protection Agency said in its comments that the draft guidance reinforces factors federal agencies are already considering during their NEPA reviews.
“The draft guidance provides a useful clarification of good NEPA practices and helps to support consistency and sharing of good practices across the federal government,” the EPA said.
Would Bring Needed Consistency
The National Association of Environmental Professionals also said in its comments that the draft guidance would bring much needed consistency to how federal agencies applied NEPA.
“In the absence of guidance from CEQ, agencies have and will be inconsistent in their consideration of GHG under NEPA, which creates uncertainty and inefficiencies instead of effective government actions,” the group said.
Rather than setting a numeric emissions threshold to trigger the reviews, Jamison Colburn, a professor of law at Penn State University, said in his comments that federal agencies could make broader use of Section 102(2)(E) of the act's requirement to consider possible alternatives to address unresolved conflicts about the use of available resources.
Setting Emissions Threshold
“For this duty to study and develop alternatives to ‘courses of action' already undertaken could be much broader in scope than simply the causal connections extending outward from some pending proposal,” Colburn said.
Given the global nature of climate change, setting an emissions threshold at which projects must consider their climate impact would make the required analyses difficult if not impossible, he said.
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GOP Senators Object to Climate Planning Directive for Federal Agencies
Mar 26, 2015 | The Hill - E2 Wire
By Timothy Cama
Six Senate Republicans blasted the Obama administration’s proposal to change how federal agencies consider climate change in environmental impact reviews.
The Republicans, led by Environment and Public Works Committee Chairman James Inhofe (R-Okla.), argued Thursday that the draft guidance from the White House is an illegal expansion of the National Environmental Policy Act (NEPA).
The draft from December says all federal agencies should consider the potential climate change effects of any project they approve or other action they take that requires an environmental review.
For the first time, the draft would mandate that agencies consider climate in land and resource management decisions.
“We are deeply disappointed that the administration is continuing down a path that is both illegitimate and irresponsible,” they said, urging the White House’s Council on Environmental Quality to withdraw the proposal.
“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.”
Inhofe is the Senate’s most vocal skeptic of climate change, and he argued, along with his colleagues, that NEPA cannot be used for climate.
The senators said the greenhouse gases cannot be proved to be a cause of climate change and the federal government’s actions can therefore not be linked to it, among other arguments.
Environmentalists disagreed with the Senate Republicans’ letter.
The Climate Action Reserve said that it ”encourages and supports efforts to improve consideration of the effects of GHG [greenhouse gas] emissions and climate change in the evaluation of proposals for federal actions under the National Environmental Policy Act.”
The draft guidance, the group said “proposes sensible criteria for how and when federal agencies should consider the effects of agency actions on GHG emissions, as well as what to consider in evaluating GHG effects and mitigation alternatives.”
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Dem Measure Seeks to Protect Officials Who Mention Climate Change
Mar 26, 2015 | The Hill - E2 Wire
By Ben Kamisar
Sen. Bill Nelson (D-Fla.) is using the budget process to hit home-state Gov. Rick Scott (R) for allegedly prohibiting state workers from using the term “global warming.”
Nelson offered an amendment to protect the ability of federal employees to talk about global warming.
“We have all read news reports at the state level, at the local level, and maybe even at the federal level,” he said during a floor speech Thursday. “Some folks are trying to muzzle scientists about speaking on the science involving the oceans, the atmosphere, climate and the weather.”
Earlier this month, the Florida Center for Investigative Reporting found that Florida's Department of Environmental Protection has been forbidden from using the terms “climate change” and “global warming” in official records.
The report quotes a number of former employees and links the policy change to Scott's tenure.
Scott has denied the charge, but he remains publicly unconvinced about global warming.
Nelson, a former astronaut, recalled looking out the window of a spacecraft and realizing how many things humans still do not understand about the Earth.
“There’s a lot about it that we don’t know, but there’s a lot about it that we can in fact measure scientifically,” he said.
“But for some reason, there is some commentary going on in America today that we want to muzzle our scientists.”
Nelson had been floated as a potential challenger to Scott in 2014, but he ultimately didn't run.
Other senators are also pushing climate-related amendments to the Senate budget, which will be voted on during a marathon session Thursday and into early Friday morning.
Democratic Sens. Barbara Boxer (Calif.), Sheldon Whitehouse (R.I.), Brian Schatz (Hawaii) and Ed Markey (Mass.) have all filed amendments that would recognize that climate change is caused by humans.
Sen. Shelley Moore Capito (R-W.Va.) has also introduced an amendment that calls for the United States not to sign an international environmental agreement that would do “serious harm” to the American economy. Capito criticized the deal that President Obama struck with China last year to cut greenhouse gases as potentially harmful.
“That agreement requires significant short-term carbon emission reductions here in the United States, but China is allowed to continue increasing its carbon emissions until 2030,” she said on the Senate floor Thursday.
“That disparity could place the United States at a significant economic disadvantage.”
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Murkowski Bill Would Streamline Permitting For Mines to Boost Critical Minerals Supply
Mar 27, 2015 | BNA Daily Environment Report
By Rachel Leven
Legislation that seeks to reduce U.S. reliance on foreign countries for critical minerals by speeding up the permitting process for new mines, among other things, was introduced March 26 by Sen. Lisa Murkowski (R-Alaska).
The American Mineral Security Act of 2015 (bill number unavailable) is the first to be introduced this Congress on the critical minerals issue, which was the subject of at least five bills in the 113th Congress.
The lack of domestic production of critical minerals, which are used in wind turbines and other energy technologies, makes the U.S. economy and security vulnerable, Murkowski said.
“We are alarmingly dependent on foreign sources for dozens of minerals,” Murkowski said in a statement. “Instead of ignoring this situation as it grows worse, my bill offers a chance to change course. It would improve our mineral security and protect our manufacturers for decades to come.”
Critical minerals legislation is a top issue on several mining and other industry groups' agendas for the 114th Congress.
Permit Streamlining
The bill would require the Interior Department and the U.S. Forest Service to streamline permitting for new mines that produce critical minerals.
The bill requires the agencies to complete a report within one year of the bill being enacted on additional measures that would ensure adequate federal training and staffing and other goals. One measure mentioned for ensuring adequate staffing is “cost recovery paid by permit applicants,” a step that has been starkly opposed by the mining industry.
It would also authorize the Energy Department to continue research on recycling and efficiency measures, as well as alternative materials, for critical minerals.
The bill doesn't list which minerals should be considered critical.
Instead, Murkowski's bill would direct the U.S. Geological Survey to establish a methodology for determining which minerals are critical. That methodology must be based on whether they are subject to supply restrictions or are important in use, including for energy technologies. Fuel minerals, including oil, natural gas or any other fossil fuel, and water, ice or snow are not to be considered critical, according to the bill.
The bill would also require the U.S. Geological Survey to conduct a resource assessment, among other actions.
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Murkowski Introduces Emboldened Minerals Bill
Mar 27, 2015 | E&E Daily News
By Manuel Quiñones
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) introduced legislation yesterday to boost the domestic supply of minerals and downstream technologies.
The 29-page bill is meant to update the country's mineral policies, including concerning rare earth elements, used in numerous technological innovations.
The legislation would set forth a way for the administration to determine what minerals are critical based on their importance and potential supply disruptions.
The legislation also includes components to promote ongoing Department of Energy research into recycling of critical minerals, alternatives and more efficient use.
Other components include promoting research and education regarding critical minerals, and research into the country's current and forecast supplies.
"Simply, her bill will better prepare our country to meet the competitive challenges we face in strengthening future economic growth and the U.S. manufacturing revival," said National Mining Association CEO Hal Quinn.
There are also sections in the legislation meant to address what many pro-mining lawmakers consider to be an overly lengthy permitting process for projects on federal land.
The bill would apply to mining a 2012 executive order by President Obama regarding permitting for important infrastructure projects. It would also expedite agency permitting in Federal Register publications.
Environmental advocates and mining watchdogs have long expressed concern with parts of the legislation dealing with permitting, arguing that the current system should be made stronger instead of more efficient.
But Murkowski, now in the majority and head of the committee of jurisdiction, didn't feel the need to sidestep or water down her preferences, at least not this early in the process.
"Without compromising our rigorous environmental standards," Quinn said, "this legislation helps reduce the inefficiencies of our underperforming permitting system by incorporating best practices for improving coordination among state and federal agencies and clarifying responsibilities, all necessary to bring accountability to the process."
NMA is even more excited about forthcoming legislation from Rep. Mark Amodei (R-Nev.), which would set permitting timelines and stem environmental group litigation against critical minerals projects.
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High Court Ruling on MATS Important Despite Mid-April Compliance Deadline
Mar 27, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's review of the Environmental Protection Agency's mercury and air toxics standards is still significant for power plants, even though the deadline for compliance with the standards is in three weeks, an attorney who represents the power industry said.
William L. Wehrum, head of the Administrative Law Group and chairman of the Environmental Team at Hunton & Williams LLP, said March 26 that discussion on whether the EPA unreasonably refused to consider the costs of regulating when it decided it was “appropriate and necessary” to regulate power plant emissions remains important, despite the quickly approaching April 16 compliance date.
Wehrum spoke during a panel discussion hosted by the D.C. Bar and the Environmental Law Institute. Attorneys with Hunton & Williams LLP represent the Utility Air Regulatory Group, a power plant trade organization that is one of the petitioners.
During March 25 oral arguments in Michigan v. EPA, Paul Smith, an attorney with Jenner & Block LLP who argued on behalf of groups intervening in the litigation in support of the EPA, told the court that most of the capital costs needed to comply with the MATS regulation has already been spent (Michigan v. EPA, U.S., No. 14-46, argued 3/25/15; 58 DEN A-1, 3/26/15).
During the panel discussion, Wehrum said that although the compliance date is nearing, more than 160 facilities have received a one-year compliance extension, and there is a mechanism for those plants to receive additional compliance time through an administrative consent order.
“It's far from over, and this case was not moot,” Wehrum said.
EPA Flexibility Cited
Ann Weeks, senior counsel & legal director at the Clean Air Task Force, said it would have been an “interesting conversation” to bring up the extended compliance provisions during oral arguments.
She said it would have further highlighted that the agency was “very flexible” in setting the standards for power plant emissions of mercury, filterable particulate matter as a surrogate for toxic metals and hydrogen chloride as a surrogate for acid gases.
Weeks served as counsel for several environmental groups who intervened in the litigation on behalf of the EPA.
State governments and industry groups that petitioned the court to review the EPA's “appropriate and necessary” finding argued that the EPA's arbitrary decision to not consider cost led to a regulation that imposes $9.6 billion in annual costs to achieve just $6 million in quantified benefits directly attributable to reducing hazardous air pollutant emissions.
The EPA estimated the MATS rule would result in as much as $90 billion in estimated annual benefits, but most of the quantified benefits are “co-benefits” from reductions in fine particulate matter.
Plants Couldn't Comply With Regulation
Justice Stephen Breyer questioned whether the EPA regulatory process could hypothetically lead to a regulation that most of the nation's power plants couldn't comply with, a line of questioning that led to a lengthy conversation about the use of subcategories to set different emissions standards for different types of power plants.
Weeks said there were “definitely elements” in the MATS rule that addressed the issue of cost-effective controls, including subcategorization and a provision allowing a facility to average together emissions from its various sources to determine compliance.
All of those elements in the rulemaking are “exhaustively developed” in the EPA's record on the MATS rulemaking, Weeks said.
Wehrum pointed out that in its MATS proposal, the EPA specifically said Congress precluded consideration of cost in setting the minimum standards for each source category, commonly referred to as the “MACT floor.”
“If it had been briefed, we probably would've pointed that out,” he said.
In the section of the proposed rule (RIN 2060-AP52) explaining what a MACT floor is, the EPA said the agency “cannot consider cost in setting the floor” (76 Fed. Reg. 24,981).
Feasibility of Cost Consideration Questioned
Weeks said it would have been irrational to expect the EPA to evaluate the cost of regulating power plant emissions at the time the agency made the “appropriate and necessary finding.”
That cost consideration would have had to be made without going through a notice-and-comment period, during which industry would provide the agency with details needed to inform the subcategorization process, Weeks said.
Wehrum said the industry petitioners view Section 112(n)(1)(A) of the Clean Air Act, which instructed the EPA to study power plant emissions and determine whether to regulate those emissions, as really a “residual risk provision.”
The statutory language instructed the EPA to identify the residual risk from power plant emissions of hazardous air pollutants, Wehrum said. Cost is always considered in other sections of the Clean Air Act that mention residual risk, according to Wehrum.
Broad Holding Possible
Gary Guzy, senior of counsel at Covington & Burling LLP, said that if the court rules against the EPA, the majority could use the opinion as an opportunity to try and speak more broadly about the nature of EPA regulatory actions.
Guzy said that petitioners' strategy to characterize the MATS regulation as the latest in a succession of moves that go beyond the bounds of the Clean Air Act “obviously worked well” because at least four judges voted to take the case.
Guzy predicted that if the Supreme Court is “going to go to the trouble” of reversing the underlying decision by the U.S. Court of Appeals for the District of Columbia Circuit, the court would likely try and speak broadly about the EPA's Clean Air Act authority.
Weeks said that if the court rules against the EPA and remands MATS back to the agency for further consideration, it would further delay action that Congress anticipated would happen between 15 years and 20 years ago.
“That would be a shame to put it mildly,” she said.
Weeks said that on remand, the EPA could still determine that benefits outweigh the costs 10 to 1 and move forward again on the standards.
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D.C. Circuit Questions Standing to Challenge EPA's Final Carbon Sequestration Waste Rule
Mar 27, 2015 | BNA Daily Environment Report
By Rebecca Wilhelm
Industry challengers to a final rule clarifying that carbon dioxide streams from geologic sequestration can be excluded from hazardous waste regulation “have serious standing problems,” a federal appeals court judge said during oral arguments March 26 (Carbon Sequestration Council v. EPA, D.C. Cir., No. 14-1046, oral arguments, 3/26/15).
Petitioners Carbon Sequestration Council, Southern Co. Services Inc. and the American Petroleum Institute told the U.S. Court of Appeals for the District of Columbia Circuit they have standing to challenge the Environmental Protection Agency's decision to regulate carbon dioxide streams injected into approved Class VI wells under the Safe Drinking Water Act for geologic sequestration as a solid waste not subject to Resource Conservation and Recovery Act hazardous waste regulations (79 Fed. Reg. 350).
Senior Circuit Judge Harry T. Edwards questioned the petitioners’ standing, saying the companies aren't using Class VI wells and nothing in the record “suggests you're considering using Class VI wells.”
Thomas Sayre Llewellyn, who argued on behalf of the petitioners, said the companies ultimately will use Class VI wells, and they want the opportunity to utilize the sequestration technology without being subject to RCRA regulations.
“If we can't challenge this now, we might not be able to challenge this in the future,” Llewellyn told the court.
Injury Suffered by Petitioners
Edwards asked Llewellyn to show the court where in the record the petitioners established they will someday use Class VI wells.
“I'm trying to find [that information], your honor,” Llewellyn said, as he paged through the record.
“As was I,” Edwards said.
Chief Circuit Judge Merrick B. Garland asked Llewellyn to explain how the EPA's promulgation of the carbon sequestration waste rule injured the petitioners if they aren't currently using Class VI wells.
The petitioners are engaged in carbon capture and want to use the Class VI wells for geologic sequestration without being subject to RCRA regulations, Llewellyn said.
“You're talking about opportunity injury,” Garland said.
Garland asked Michele L. Walter, who argued on behalf of the government, if the petitioners would have standing if they indicated they are going to use Class VI wells.
Alleged Injuries Called ‘Purely Speculative.'
Walter responded that the petitioners' alleged injuries are “purely speculative” and that the court should dismiss the lawsuit (218 DEN A-2, 11/12/14).
Robert F. Van Voorhees, who also represents the petitioners but didn't argue before the court, told Bloomberg BNA March 26 that the petitioners fall under the class of industries affected by the rule. The petitioners have standing because a decision upholding the RCRA regulations would constrain the companies from using Class VI wells, he said.
The petitioners argued that the RCRA solid waste classification doesn't include the carbon dioxide streams and that the D.C. Circuit should vacate the EPA's determination (246 DEN A-3, 12/23/14).
The rule imposes regulatory burdens on the petitioners, Llewellyn told the court.
Exclusion Covers ‘Narrow Purpose.'
Circuit Judge Janice Rogers Brown asked Walter if the EPA has made a solid waste finding that will carry over to other types of wells.
Walter emphasized that the “EPA issued the conditional exclusion for a very narrow and circumscribed purpose.” The rule is limited to the injection of one type of waste into one type of well for one type of activity, she said.
Specifically, Walter explained that when the carbon dioxide is captured, it's compressed into a supercritical fluid, which is a substance with physical properties between a liquid and a gas.
The EPA determined that when a supercritical carbon dioxide stream is injected into a Class VI well for geologic sequestration, then it's a solid waste under RCRA because it has been “discarded.”
However, the discarded stream is not subject to hazardous waste regulations, she said.
Edwards repeatedly said that the petitioners are “over-reading” the rule, which “doesn't cover what you think it covers.”
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(ACC Mentioned) Uncertainty Clouds Key Rail Bills in Senate
Mar 26, 2015 | RailwayAge
By Frank N. Wilner
The road ahead for both bills, as they are currently written, could be problematic, with the crucial test being Senate floor action and then consideration in the House, which has made no progress on its own on either of the issues.
PTC Extension
The Railroad Safety and Positive Train Control Extension Act (S. 650) would remedy a problem beyond the railroads’ control by delaying for at least five years the previously imposed congressional deadline of Dec. 31, 2015, for implementation of PTC—a $14 billion safety overlay utilizing computers, transponders, and GPS to stop or slow a train automatically before certain types of accidents occur.
A commuter train accident in Chatsworth, Calif., in 2008, which killed 25, nudged Congress to impose that 2015 deadline on some 60,000 miles of track that carry passenger trains and certain hazardous materials. Failure to meet the deadline would force railroads to halt service on affected track or operate in violation of the law—the latter subjecting railroads to significant federal fines.
A snag developed when the Federal Communications Commission halted testing of thousands of PTC-related poles and towers, and construction of thousands more, pending resolution of siting-compliance requirements of the National Historic Preservation Act and the National Environmental Policy Act.
Although the FCC has since allowed construction and testing to resume—an agreement including a requirement that railroads pay $10 million into a Tribal Nations Cultural Resource Fund—railroads advised the Federal Railroad Administration (FRA) and Congress that because of the FCC-caused delay, they could not meet the deadline. When the FRA declined to use its own powers to grant an extension, Sen. Roy Blunt (R-Mo.) introduced legislation to extend the deadline for five years until Dec. 31, 2020—with flexibility for yet another two-year extension to 2022. Co-sponsoring the bill are Commerce Committee Chairman John Thune (R-S.D., pictured) and the committee’s senior Democrat, Bill Nelson (D-Fla.).
By voice vote, the Senate Commerce Committee March 25 recommended the bill’s passage, after agreeing to an amendment by Sen. Richard Blumenthal (D-Conn.) to require periodic and public progress reports by the railroads.
“Railroads have made a good-faith effort to install PTC,” Thune said. “Yet, for every major freight railroad, and nearly every small freight or commuter railroad, the PTC deadline is not attainable. PTC needs to be done, and it needs to be done right. Rather than introducing new operational and safety risks from an incomplete system or punishing railroads making a good-faith effort to implement this extremely complex and expensive mandate, Congress should extend the PTC deadline.”
Similar legislation was approved by the Commerce Committee in 2014, but it failed to reach the Senate floor. There is more urgency attached to this bill, as the PTC implementation deadline is but nine months hence.
S. 650 will be ready for a floor vote following completion of a manager’s report to be written by Thune. Senators Blumenthal, Amy Klobuchar (D-Minn.) and Joe Manchin (D-W.Va.) say they are opposed to the bill as now written. Blumenthal, despite having one amendment accepted by the Commerce Committee, has 11 additional amendments he would like added, including a mandate for two-person crews, which is an unrealistic objective in this Republican controlled Senate.
Attempts at such amendments could be made if the bill reaches the Senate floor. Majority Leader Mitch McConnell (R-Ky.) schedules floor time for votes and is unlikely to do so if he cannot obtain unanimous consent to limit the nature and number of amendments and debate. The bill also could be appended to a so-called “must pass” bill, but given the political ill-will within Congress of late, even a “must pass” bill is subject to adverse action, as has been witnessed by government shutdowns and near shutdowns amidst political wrangling.
A key to unanimous consent to limit debate and the nature and number of amendments on S. 650 could be Sen. Diane Feinstein (D-Calif.), who initially led the effort to impose the Dec. 31, 2015, deadline on PTC implementation. Feinstein has yet to express herself on S. 650. A Capitol Hill source suggests that if unanimous consent cannot be obtained under the current circumstances, a compromise might be to change the extension period to one-year increments.
It is expected that if the Senate passes S. 650, the House will vote on the Senate measure without writing its own version. Otherwise, a separate bill must move through the House, with a joint House-Senate conference committee resolving disagreements in the two measures. The clock is ticking.
Here is a link to S. 650 (not all co-sponsors are shown).
STB Reauthorization
S. 808 may be more problematic than the Positive Train Control deadline extension bill, notwithstanding its bi-partisan committee support and stated support by railroads and almost two-dozen shipper trade groups that for years have lobbied for what railroads term “reregulation.”
While shipper groups such as the American Chemistry Council, American Farm Bureau Federation, Consumers United for Rail Equity, and the National Industrial Transportation League urged, in a March 24 letter to Thune, a favorable report on S. 808, they have been heard to grumble over some of its provisions.
Indeed, hours before the Commerce Committee mark-up on S. 808, Sen. Tammy Baldwin (D-Wis.), who has long worked closely with so-called captive shipper groups, introduced legislation containing many of the outcome determinative provisions that previously doomed similar bills, such as advanced by now retired Sen. Jay Rockefeller (D-W.Va.), who chaired the Commerce Committee prior to its Republican control this session.
The Baldwin bill—the Rail Shipper Fairness Act of 2015 (which has yet to receive a bill number)—will be referred to the Commerce Committee, where it will gather dust. The problem is that if the Thune-Nelson bill reaches the Senate floor, the Baldwin bill is likely to be introduced as a substitute for S. 808. For that reason alone, Senate Majority Leader McConnell would be disposed not to schedule a floor vote on S. 808. That is unless Baldwin withdraws her bill or there is unanimous consent to move S. 808 without amendment, such as a Baldwin-bill substitute.
Indeed, S. 808, allegedly supported by so-called captive shippers, could die in waiting just as virtually all captive-shipper inspired bills have over more than three decades since railroads were partially deregulated by the Staggers Rail Act in 1980.
As with the PTC deadline extension bill, there has been no independent action in the House on Staggers Act revisions as part of Surface Transportation Board reauthorization. Again, the House presumably is awaiting Senate action. But unlike the PTC extension bill, there is no looming deadline or other adverse result should S. 808 move no further than it has. If it does move, S. 808 could be married—for legislative convenience sake—to a highway reauthorization bill (not expected to be ready before 2016 at the earliest) or an Amtrak reauthorization bill already passed by the House.
Here is a link to S. 808 (co-sponsor Nelson’s name is not shown).
So-called captive shippers—those with few or no effective rail transportation alternatives—are privately grumbling, notwithstanding their public support for S. 808. “Materially worse” than anything previously introduced, said one shipper source, asking not to be identified. The problems? Significant ones, say some shippers.
The voluntary arbitration provision of S. 808—unlike one that was advanced by Rockefeller that allowed it to be triggered by shippers alone—requires agreement by all parties. More troublesome to shippers is that before such arbitration can be requested, the STB must make a finding that the railroad is market-dominant based on a ratio of rates to variable costs. This, say shippers, is a lengthy and costly effort.
Then there is the arbitration mechanism, which allows the STB to review the award and overturn or modify it, with the STB instructed to decide if the award complies with “sound principles of railroad regulatory economics,” which shippers say injects a new area for controversy. Moreover, the STB review of the arbitrator’s award can then be appealed to a federal court. “The process becomes more complicated, lengthier, and more costly rather than the opposite,” says a shipper advocate.
Another provision of S. 808 troubling shippers is a requirement that the STB consider the “investment needed to meet the present and future demand for rail services.” This, say shippers, opens the door for revenue adequacy to be measured based on current replacement costs rather than original costs, which could allow higher rates rather than the cap on further rate increases sought by shippers.
(The Watching Washington column in the April issue of Railway Age discusses the economics of using replacement costs rather than historical costs. That column is included at the end of this story—Editor.)
Finally, shippers bemoan that a provision previously advanced by Rockefeller—that it is “the sense of Congress” that the STB “determine the need for a proceeding on mandatory competitive switching; and determine whether a timely rulemaking for competitive switching is needed”—does not exist in S. 808.
“Muddy waters ahead,” said a rail lobbyist, asking not to be identified, in response to shipper concerns.
There are, however, provisions shippers can and do embrace. They include increasing the number of STB Senate-confirmed members from three to five; requiring the STB to develop a separate rate-reasonableness test for grain—a provision grain shippers view as encouraging; a requirement that the STB accelerate and make less expensive its rate reasonableness tests; a study into whether certain contract proposals for multiple origins and destinations limit shippers’ ability to file rate complaints; and authority for the STB to initiate investigations into service problems on its own motion rather than awaiting a shipper complaint.
As for the Baldwin bill, it would assume, even where two railroads compete, that railroads are market-dominant, and shift the burden of proof in most rate cases to railroads. It would amend National Transportation Policy by elevating shipper priorities—presumably for lower rates and improved service—to at least the level of railroad revenue adequacy requirements.
Additionally, the Baldwin bill would encourage the STB to order competitive switching within 100 miles of junction points. And it would eliminate the revenue adequacy test, meaning no longer would there be a requirement that the railroad’s rate of return on invested capital at least equal the cost of obtaining that capital—a provision that would stand mainstream economic theory on its head.
The only logical objective of the Baldwin bill in this Republican controlled Congress is to assure that S. 808 is equally doomed as was all previous shipper-inspired legislation. And that may be just what many captive shippers seek for S. 808, notwithstanding their public comments. Otherwise, the purpose of the Baldwin bill is quite challenging to understand. Now-retired former Rail Subcommittee Chairman Al Swift (D-Wash.) explained such situations by counseling, “Never assume conspiracy when incompetence will do.”
So while S. 650 (deadline extension for PTCl) and S. 808 (Staggers Rail Act revisions as part of STB reauthorization) took meaningful steps forward March 25, there is a long, arduous, and treacherous road ahead for both—with no further action on either expected in the near term owing to Senate recess and a crowded floor calendar.
Dan Elliott
Former STB Chairman Dan Elliott (pictured), who stepped down Dec. 31 after failing to receive a confirmation hearing for a second term, is again awaiting a confirmation hearing this Senate term after being renominated a second time by President Obama. Shipper chatter is that they want him back on the STB and are urging Thune to schedule a confirmation hearing.
Railroads, by contrast, are being heard to whisper their desire that Acting Chairman Deb Miller remain in charge; that the White House perhaps should find another nominee to fill Elliott’s vacancy; or that the STB continue to operate with just two members. From 2003 to 2004, the STB operated with a lone member—former Chairman Roger Nober, who is now BNSF’s executive vice president of law.
As for the STB’s only Republican member, Ann Begeman, her term expires Dec. 31, 2015, although the statute allows her a holdover year if a successor is not nominated and confirmed. S. 808 would amend the statute to permit STB members to remain indefinitely until a successor is nominated and confirmed. Democrat Miller’s term expires Dec. 31, 2017. The vacant seat held by Democrat Elliott expires Dec. 31, 2018—some two years into the next administration, which could explain the Republicans’ desire not to reconfirm him, as the seat would be available for a Republican nominee should the White House go Republican in the 2016 presidential election.
WATCHING WASHINGTON, APRIL 2015 RAILWAY AGE
Revenue adequacy is all about expectations
No matter how long the way to Tipperary, the rail industry endures a further trek toward revenue adequacy—the financial nirvana where the rate of return on invested capital (ROI) equals or exceeds the current cost of obtaining that capital.
Only such equilibrium brings forth investors eager to provide sufficient new capital to renew, improve, and expand railroad infrastructure to meet customer demand.
The Surface Transportation Board (STB), which calculates railroad revenue adequacy, has found only a few individual carriers revenue adequate for one or two years.
Economists say revenue adequacy must be calculated over a business cycle—typically five to seven years. If a railroad is prohibited from earning anything more than its cost of capital in good years, the lower earnings in bad years will consign it to never achieving long-term revenue adequacy.
Shippers with limited or no effective rail transportation alternatives assert that improved railroad profitability alone is sufficient for the STB to declare the entire industry revenue adequate, which could trigger tighter caps on the freight rates they pay.
Long-term investors—with multiple alternative investment opportunities, and who must be courted to provide railroads with as much as $300 billion over the next 20 years to meet projected increased demand for quality rail service—calculate revenue adequacy differently than the STB or shippers.
Where the STB uses original (historic) cost as the investment base on which to calculate rate of return, long-term investors focus on replacement cost. The reason is railroad infrastructure is long-lived and cannot be replaced or renewed at anywhere near its original cost.
Indeed, $1 million doesn’t buy what it once did. A 10% return on an asset costing $1 million in 1940 would be equivalent to less than a 1% return today, as the inflation-adjusted cost of replacing that asset would be some $17 million in 2015 dollars.
Rail earnings may have to rise were revenue adequacy measured on replacement rather than original cost. Yet electric utilities, among the most vocal of customers in criticizing railroad rates and service quality, similarly embrace a replacement cost methodology. One of the most glaring examples is Florida Power & Light, which told its own regulators, “If we can’t make an attractive investment for the shareholder, then we are going to have a very difficult time going in the marketplace and competing for [investment] dollars.”
Revenue adequacy and the cost of capital are viewed by investors as expectations, not historical events. In fact, Congress, in the statute, instructed the STB to assist railroads in meeting those expectations and not curb them when revenue adequacy is momentarily achieved.
When shippers cite rail profits to justify tighter caps on rail rates, they step on their own message, which is a priority demand for long-term service quality. The level of profits should not drive revenue adequacy determination. Had railroads never earned more than $100, but last year earned $110, it would be a record. But would it be enough?
The appropriate question for regulators and investors is whether railroads earn their cost of capital over the long term, because expected revenue adequacy is the key to unlocking future investment.
Investors, suspicious the STB won’t permit higher returns, have been demanding their money back.
Over the past five years, investor pressure has forced every major railroad to repurchase its stock—$28 billion worth. Were the STB to view revenue adequacy as Congress intended—as a continuing goal for the railroads—and computed and achieved revenue adequacy on the basis of replacement costs, investors would encourage railroads to make additional investments, such as new main lines connecting the Midwest and Pacific Coast to satisfy shipper demands for increased capacity and improved service quality.
Congress, rather than writing a definition of revenue adequacy, instructed the STB to “maintain and revise as necessary standards and procedures for establishing revenue levels … [that] permit the raising of needed equity capital, and cover the effects of inflation.”
The STB should establish revenue adequacy standards using replacement costs, and not prohibit railroads from earning anything more than their cost of capital in good years, as otherwise there is nothing to offset the lower earnings in bad years.
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(ACC Mentioned) STB Reauthorization and PTC Extension Bills Take Positive Steps Forward
Mar 26, 2015 | Logistics Management
By Jeff Berman
It was a busy day for railroad-related legislation yesterday, with the United States Senate Commerce, Science, and Transportation Committee approving two bills with a railroad focus by a voice vote.
The respective bills are S. 808, the Surface Transportation Board Reauthorization Act of 2015 and S. 650, the Railroad Safety and Positive Train Control Extension Act.
Legislation regarding both bills has been introduced frequently in recent years.
In the case of the STB bill, S. 808, railroad service issues and rates remain front and center, as has been the case in previous incarnations. The bill is focused on addressing inefficiencies within the STB, which serves as the federal regulatory body responsible for economic oversight of the U.S. rail system, with regulatory jurisdiction over railroad rate reasonableness, mergers, line acquisitions, new rail-line construction, line abandonment, and other issues.
“The major rail service issues experienced in 2013 and 2014 in South Dakota, the Upper Midwest, and across the country are fresh in my mind, including the grain car backlogs, the storage constraints, and the increased rail car premiums shippers and businesses faced,” said Sen. John Thune (R-S.D.), committee chairman, in a statement. “While the Surface Transportation Board has been working diligently to ensure these issues do not happen again, the recent service crisis highlighted inefficiencies at the agency that Congress has the ability to address. This legislation will help the STB address such issues and operate with increased transparency, accessibility, and efficiency.”
Some of the highlights of S. 808 include:
-setting timelines for rate reviews and expanding voluntary arbitration procedures when railroads and rail shippers want a quick and efficient resolution;
-grant the STB authority to proactively resolve problems before they can escalate into expensive disputes;
-grant the STB new authority to avoid lengthy and expensive disputes and enhance transparency to benefit shippers and consumers in the U.S.; and
-expand board membership from three members to five, and, with proper disclosure, allow board members to talk with one another without a prior public hearing notice as long as it complies with certain scope and participation limitationsIf signed into law, S. 808 would authorize the STB through Fiscal Year 2020.
While similar attempts to improve the STB have been proposed in recent years, this effort is different in that rail service, going back to the winter of 2013-2014, saw major delays in various parts of the country even while Class I railroad carriers continue to make record capital expenditure investments, with much of that capital allocated for infrastructure improvements.
The bill was soundly endorsed by Cal Dooley, president and CEO of the American Chemistry Council, whom noted it will make various changes that will streamline what he described as the STB’s “overly burdensome rate review standards, provide reasonable arbitration procedures to resolve rate disputes, and allow the STB to be more proactive in resolving freight rate issues.”
And the Association of American Railroads (AAR) was also positive in its thoughts regarding S. 808.
“The STB reauthorization measure as passed today takes into account the vital need for freight railroads to earn revenues that allow for billions of dollars in private spending each year to build, maintain and grow the nationwide rail network, so taxpayers don’t have to,” said AAR President and CEO Ed Hamberger.
The AAR’s top executive has said repeatedly that the record private investments that the rail industry makes every year in the nation’s rail network have well positioned today’s continued economic recovery, adding that the industry invests the revenue it earns, not government funding, to grow and modernize the rail network, meeting the needs of customers, large and small.
Class I railroad executives have said repeatedly over the years that the existing regulatory railroad environment has produced—for North American railroad shippers—a freight railroad system that is the envy of the world. And while it not perfect, depriving the industry of its ability to earn its cost of capital could have a chilling effect on capital investments to support traffic growth and it could begin to reverse the great strides the rail freight sector has made after Staggers in the areas of rail safety and service reliability.
PTC extension: As recently reported by LM, early this month a bill, entitled “S.650 - A bill to extend the positive train control system implementation deadline, and for other purposes,” was introduced, and like S. 808, it was also approved by a voice vote.
S. 650 pledges to extend the PTC deadline to 2020. While the Federal Railroad Administration (FRA) has long stated its goal of having Positive Train Control (PTC) technology installed on 40 percent of its network by December 31, 2015, railroad industry stakeholders have repeatedly stated that reaching that deadline would be a stretch.
The objective of PTC systems is to prevent train-to-train collisions, overspeed derailments, and incursions into roadway work limits. PTC sends and receives a continuous stream of data transmitted by wireless signals about the location, speed, and direction of trains, according to the Federal Railroad Administration (FRA). PTC systems, added the FRA, utilize advanced technologies including digital radio links, global positioning systems and wayside computer control systems that aid dispatchers and train crews in safely managing train movements.
The AAR and its Class I railroad members have made it clear for some time that its chances of meeting the original deadline were less than likely, often citing how the process has lacked the certainty needed to get PTC tested, fully functioning and certified.
Senate members have previously issued similar legislation in the past, entitled the Positive Train Control Extension Bill, which also called to push back the statutory deadline for PTC implementation on roughly 50,000 miles of U.S. railroads to December 31, 2020 as well as offer up an optional two-year extension should approval from the Federal Railroad Administration be granted. Also covered in this bill, according to its language, was an extension for short line railroads that operate on PTC-mandated track. -
North American Railroads Caught by Speed of Crude-Oil Collapse
Mar 27, 2015 | Bloomberg
By Thomas Black
The slowdown that North American railroad companies had been bracing for in crude oil shipments has turned into a rout, with volumes falling faster than executives had predicted.
With energy companies scaling back drilling after prices for the commodity fell about 50 percent since July, industry executives and analysts anticipated that demand for hauling crude and extraction materials such as frac sand and pipes would slow after a four-year surge. They didn’t expect it to slow this much this fast.
“The impact is occurring more quickly than the rails originally projected to investors,” said Matt Troy, an analyst with Nomura Securities International Inc. in New York. “The consensus view was that very high double-digit growth would moderate to low double digits, and as we have seen in recent weeks we’ve broken that floor and in some cases gone negative.”
Rail stocks are reflecting the slowdown in traffic. The Standard & Poor’s 500 Railroads Index is on course for the biggest weekly decline since September 2012.
As recently as January, companies including CSX Corp. and Canadian Pacific Railway Ltd., were forecasting that even with prices below $50 a barrel, oil projects already under way would buoy production and keep trains hauling even more crude than last year. Instead carloads of U.S. petroleum products fell 2.8 percent in the last four weeks after growing 13 percent last year. Crude Contrast
Beau Maida, director of rail services at GT OmniPort, sees the effects first hand from a freight yard on Texas’ Gulf Coast.
“I’m definitely seeing the drop-off,” Maida said in an interview. GT OmniPort is situated near two refineries at Port Arthur, Texas, and has 8.5 miles (13.7 kilometers) of track and facilities to offload crude from railcars.
The weakness contrasts with the industry’s struggle to keep pace with demand to haul crude as drilling reached areas that traditionally weren’t connected by pipelines. Carloads of crude jumped to 493,000 last year from 11,000 in 2009 as new extraction techniques known as hydraulic fracturing helped push U.S. crude production to its highest in at least three decades.
“This is the first time that anybody has slowed down on fracking,” said Taylor Robinson, president of Chicago-based PLG Consulting, which advises rail companies. “Nobody knew how fast they could shut down and it looks like they’re pretty fast.” New Reality
Some railroads are adjusting to the new reality. CSX no longer expects to reach the high end of its forecast for crude carloads this year, though it still estimates they’ll increase, Melanie Cost, a spokeswoman, said in an e-mail Thursday.
CSX Chief Executive Officer Michael Ward said in a Jan. 14 interview that crude trains may rise to an average of 4 to 4.5 a day, an increase of as much as 29 percent. In the last four weeks, CSX’s petroleum products carloads rose 3.6 percent following a 60 percent gain last year, according to Association of American Railroads statistics.
Kansas City Southern earlier this week reduced its 2015 revenue growth forecast in part because of lower-than-expected crude-by-rail shipments and a 20 percent decline in coal revenue in the first quarter as utilities switch to cheaper natural gas.
The company now forecasts a revenue increase in the low single digits, down from an earlier prediction of mid-single-digit growth.
“That’s a little bit of an indicator of things to come,” Keith Schoonmaker, an analyst with Morningstar Inc., said in a phone interview. Keeping Projections
Others are sticking to their projections for now.
Martin Cej, a spokesman for Canadian Pacific, said in an e-mail his railroad hasn’t changed its forecast of 140,000 crude carloads in 2015. Canadian Pacific posted a 9.1 percent increase in petroleum product carloads in the last four weeks. That’s down from 16 percent last year and a third of the railroad’s forecast for a 27 percent gain in crude only carloads this year.
BNSF Railway Co., the railroad owned by Warren Buffett’s Berkshire Hathaway Inc., posted a 4.5 percent drop in petroleum products in the last four weeks after a gain of 12.4 percent last year. BNSF’s network runs through North Dakota, making it the largest hauler of Bakken oil production. Union Pacific Corp., which serves Texas oil fields, saw its carloads plummet 25 percent in the four-week period.
Demand for Bakken crude from U.S. East Coast refineries may decline as the price premium for imported Brent crude narrows. It costs about $2 to $3 a barrel to ship Brent by boat while hauling Bakken crude by train adds as much as $14 a barrel, PLG’s Robinson said. About 70 percent of Bakken crude now goes to East Coast refineries, he said.
“My suspicion is that the East Coast is going to get hit with more imports,” Robinson said. Outsized Growth
Demand for frac sand, used to prop open the cracks in shale stone to release trapped oil, can be an early indicator of activity linked to the oil industry. Many wells are being drilled just to meet contractual obligations without taking the final step to frack them to produce oil. Fracking entails pumping water and chemicals into a well at high pressure to break up the shale rock to allow oil to escape.
“Frac sand is going to fall off very quickly,” Robinson said. “Oil production within a couple of months is going to fall off very quickly.”
Union Pacific’s carloads of stone, sand and gravel, which includes frac sand, fell 6.3 percent in the last four weeks after jumping 22 percent last year. BNSF saw those types of carloads drop 3 percent after increasing 18 percent last year.
The outsized growth of crude trains had pumped up rail profits even though oil accounts for only about 2 percent to 3 percent of carload volume. That percentage often doubles when factoring in the frac sand, pipe and other materials needed for drilling, Nomura’s Troy said. Union Pacific has said its total exposure to oil is 4.5 percent of volume while Canadian Pacific’s is about 10 percent.
“The energy complex which was a friend to the railroads over the last two years is rapidly becoming a foe with respect to sentiment,” Troy said.
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