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(ACC Mentioned) Industry Pushes Back on Plasticizer Regs; NRDC Urges Steady Course
Apr 16, 2015 | E&E - Greenwire
By Sam Pearson
Heavyweight industry groups are pushing back on a proposed Consumer Product Safety Commission regulation that could ban certain plasticizers that have been linked to health problems, pointing to what they say are procedural problems in how the agency determined the ban was necessary. -
TSCA Reform Legislation: EPA Review of New Chemicals
Apr 16, 2015 | Environmental Defense Fund
By Richard Denison, Ph.D.
This is the second in a series of blog posts looking at less talked-about, but critically important, elements of bipartisan legislative proposals to reform the Toxic Substances Control Act (TSCA). -
EPA Official Takes Issue With Chemical Reform Bill
Apr 16, 2015 | Manufacturing.Net
By Andy Szal
A top U.S. Environmental Protection Agency administrator expressed concerns Tuesday about provisions of a chemical regulations overhaul pending in Congress. -
EPA Moving Toward Potential NMP, Methylene Chloride Ban
Apr 15, 2015 | InsideEPA
EPA has begun developing a proposed Toxic Substances Control Act (TSCA) section 6 rule that could restrict or prohibit the use of the paint-stripping chemicals n-methlpyrrolidone (NMP) and methylene chloride, after finding that the chemicals pose a risk to human health. -
‘The Human Experiment’ Movie Review
Apr 16, 2015 | The Washington Post
By Stephanie Merry
We’re all just lab rats, subject to endless clinical trials with every move, drink, bite and breath. -
House Cyber Bills May Hit Floor Separately
Apr 16, 2015 | The Hill - Cybersecurity
By Cory Bennett
The two House bills to increase public-private cybersecurity information sharing may hit the floor separately next week after all, despite weeks of speculation the pair would be combined. -
2 Years After Texas Blast, Report Highlights Gaps in Information Sharing
Apr 16, 2015 | E&E - Greenwire
By Sam Pearson
Federal, state and local governments could do more to share information on where flammable and explosive materials are stored, which is necessary to avoid safety lapses, according to a new report. -
With the Right Policies in Place, Fracking Can Contribute to an American Economic Renaissance and Rebirth of Manufacturing: Jeb Bush (Opinion)
Apr 16, 2015 | Cleveland Plain Dealer
By Jeb Bush
One of the greatest economic transformations in American history is less than a decade old and it's happening right here in Ohio. -
Jeb Bush Slams New Fracking Rule in Op-Ed
Apr 14, 2015 | E&E PM
By Daniel Bush
Former Florida Gov. Jeb Bush (R) waded into the debate over hydraulic fracturing today, offering a full-throated endorsement of the controversial oil and gas drilling method and slamming the Obama administration's new fracking rule in a newspaper op-ed. Fracking has helped unleash an energy boom, created thousands of new jobs in Ohio and other states around the country, and lowered gas prices, says Bush, an all-but-certain 2016 Republican presidential candidate, in the Cleveland Plain Dealer op-ed. "You would think leaders in Washington would want to take every advantage of this newfound economic boon," Bush says, but instead the Obama administration has proposed drilling regulations that would ensure "Ohio workers, landowners and taxpayers wouldn't benefit from fracking at all." Bush singles out a final rule released last month by the Interior Department that would require companies to disclose the chemicals they use in underground oil and gas wells and store toxic drilling waste in above-ground metal tanks. Industry groups are fiercely opposed to the measure, while environmental organizations have said it doesn't go far enough to reign in potential spills, water pollution and other fracking hazards. "These rules are a stepping stone to even more stringent regulations of energy production, whether on federal lands or elsewhere. Congress should block them and force the Obama administration to pull back," Bush says in the op-ed. Bush argues that oil and gas in the Marcellus Shale formation that runs under parts of Ohio, Pennsylvania and New York could be extracted in an "environmentally sustainable way," though he doesn't provide further details. In making his case directly to Ohio voters, Bush is seeking to build support in a key swing state that he'll need to carry in the general election if he becomes the GOP presidential nominee. In the op-ed, Bush also outlines his support for the Keystone XL pipeline and calls for an end to the decades-old ban on crude oil exports. Bush laid out a similar energy platform at a speech in Colorado earlier this year (Greenwire, April 8). Bush is expected to formally enter the presidential race later this year. He'll join a crowded field of GOP hopefuls that already includes Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida, who announced his candidacy yesterday (E&E Daily, April 14). -
Judges Appear to Lean Toward Waiting in Climate Case
Apr 16, 2015 | PoliticoPro - Whiteboard
By Erica Martinson
Federal judges appeared unsure today about whether the EPA has legal authority for its proposed greenhouse gas rule for existing power plants, but even more wary about expanding the court’s authority by judging a rule that is not yet final. -
Court Skeptical of Challenge to EPA's Climate Rule
Apr 16, 2015 | The Hill - E2 Wire
By Timothy Cama
Two of the three federal judges weighing a challenge to the Obama administration’s proposed emissions standards for power plants appeared skeptical Thursday of striking down the regulations before they are even finalized. -
Skeptical Judges Question Attack on EPA's Proposed Rule
Apr 16, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
More than a dozen predominantly Republican-led states, coal companies and other industry groups today pressed federal judges to take the unusual step of blocking U.S. EPA from finalizing greenhouse gas standards for existing power plants. -
D.C. Circuit Appears Likely To Reject Suit Over Climate ESPS
Apr 16, 2015 | InsideEPA
Appellate judges on the U.S. Court of Appeals for the District of Columbia Circuit appear likely to reject -- on procedural grounds -- states' and industry groups' novel challenges to EPA's proposed greenhouse gas (GHG) rule for existing power plants, according to Inside EPA's Dawn Reeves, who was in the court. -
Support for Carbon Tax Reaches Almost 70%
Apr 16, 2015 | E&E - Climatewire
By Evan Lehmann
A large majority of Americans support taxing carbon emissions, according to polling results released yesterday, and favorability rises to two-thirds if the tax is used to send money back to households.
Industry and Association News - There are no clips to report at this time.
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(ACC Mentioned) Industry Pushes Back on Plasticizer Regs; NRDC Urges Steady Course
Apr 16, 2015 | E&E - Greenwire
By Sam Pearson
Heavyweight industry groups are pushing back on a proposed Consumer Product Safety Commission regulation that could ban certain plasticizers that have been linked to health problems, pointing to what they say are procedural problems in how the agency determined the ban was necessary.
A public comment period ended late yesterday on the regulations, which were required under a 2008 law, the Consumer Product Safety Improvement Act.
Under a procedure established by the law, CPSC convened a panel of scientists known as the Chronic Hazard Advisory Panel on Phthalates, whose members were nominated by the National Academy of Sciences, to review scientific research on phthalates and determine which, if any, of the plasticizers should be banned from children's products and child care articles.
Acting on the advice of the panel, CPSC has proposed making permanent an interim ban on diisononyl phthalate, or DINP, and also permanently banning four other phthalates -- diisobutyl phthalate, or DIBP; di-n-pentyl phthalate, or DPENP; di-n-hexyl phthalate, or DHEXP; and dicyclohexyl phthalate, or DCHP -- in children's products and child care items.
Exxon Mobil Corp., a "major producer" of DINP and another phthalate -- diisodecyl phthalate, or DIDP, which CPSC proposed removing interim restrictions on -- has called the rule unnecessary and the product of bad science.
These chemicals "are used in many vinyl products because of their excellent functionality, low volatility, low toxicity, high durability and value across a spectrum of end uses," Exxon Mobil wrote in its submitted comments.
The industry groups say that more recent data would show that exposure to the phthalates has declined, and thus that the restrictions are not necessary. The companies have also disputed CPSC's use of a cumulative risk assessment, though the 2008 law allows for the use of the technique.
The Toy Industry Association, U.S. Chamber of Commerce and American Chemistry Council also weighed in against the change, while the Natural Resources Defense Council urged CPSC to complete the rule and to ban two additional phthalates permanently, as well.
Finalizing the proposal to restrict the specified phthalates "will contribute to their exposure decline and hopefully promote innovation for safer alternatives," wrote Jennifer Sass, a senior scientist at NRDC.
Under the 2008 law, CPSC is required to "consider the level at which there is a reasonable certainty of no harm to children, pregnant women or other susceptible individuals and their offspring" from the phthalates examined.
The agency previously had extended the comment period in response to criticism from industry groups (E&ENews PM, March 16).
CPSC staff must review and respond to the comments and prepare a final rule briefing package for the commissioners, CPSC spokesman Scott Wolfson said.
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TSCA Reform Legislation: EPA Review of New Chemicals
Apr 16, 2015 | Environmental Defense Fund
By Richard Denison, Ph.D.
This is the second in a series of blog posts looking at less talked-about, but critically important, elements of bipartisan legislative proposals to reform the Toxic Substances Control Act (TSCA). This post deals with EPA authority to review new chemicals prior to their entry into commerce.
TSCA divided the universe of chemicals into two groups: “Existing chemicals” are those on the market at the time the first TSCA Inventory was established (1979), numbering some 62,000 chemicals. These chemicals were grandfathered in by the original law, with no mandate for them to be tested or reviewed for safety. “New chemicals” are those that entered commerce at some point since 1979, numbering some 23,000 chemicals. Between 500 and 1,000 new chemicals enter commerce in a typical year. (Given these large numbers, it’s surprising how relatively little focus there has been on the way bipartisan reform proposals would address new chemicals. I’ll amplify on this point at the end of this post.)
Section 5 of TSCA provided EPA with authority to review new chemicals prior to market entry. However, it imposed substantial constraints on EPA in conducting those reviews. Under TSCA, a company is generally free to start making and selling a new chemical at the end of a 90-day review period, unless EPA finds the chemical “may present an unreasonable risk.” That is, no affirmative safety decision is required, and the burden is on EPA to find a concern even when safety data are wholly lacking.
I have blogged extensively about the limitations of EPA’s new chemicals reviews. Let me briefly summarize the key problems here, and refer readers to these blog posts for more detail.No data, no problem: No up-front testing requirement or minimum data set applies to new chemicals.Guessing game: EPA is forced to heavily rely on limited models and methods to predict the toxicity or behavior of a new chemical.Catch-22: While EPA can require testing of a new chemical on a case-by-case basis, it must first show the chemical may pose a risk – not an easy task without any data in the first place!One bite at the apple: EPA typically gets only a single opportunity to review a new chemical.Crystal-ball gazing: EPA has to try to anticipate a new chemical's for-all-time future production and use.Black box: New chemical reviews lack transparency.Anti-precaution: In deciding whether to require testing or controls for a new chemical, EPA effectively equates lack of evidence of harm with evidence of no harm.
How would TSCA reform legislation address these problems?
The Lautenberg Act mandates for the first time that EPA make an affirmative finding of safety for each new chemical as a condition for market access. It makes clear that manufacture of a new chemical can only start if EPA determines it is likely to meet the safety standard. Where EPA determines the chemical is not likely to meet the safety standard, it must preclude manufacture or impose restrictions sufficient for EPA then to find the chemical is likely to meet the safety standard.
If EPA finds it has insufficient information to make a determination, it can suspend the review pending receipt of the information, or impose restrictions sufficient for it to make the likely-safe determination even in the absence of the information. While the bill does not require up-front safety data sets for new chemicals, as noted in myfirst post in this series, EPA can require testing of new chemicals as needed. It can do so by issuing orders as well as through negotiating consent agreements. And it need not first show potential risk or high release or exposure in order to require testing.
Once a new chemical enters commerce, it becomes subject to the bill’s prioritization process. EPA can review the chemical at any time based on new information that it develops or obtains after the chemical is on the market. The bill also requires EPA to make public all documents relating to new chemicals and EPA reviews, subject to the bill’s confidential business information (CBI) protections.
The new chemicals provisions of the Lautenberg Act go far to address the fundamental problems with TSCA’s Section 5.
The House discussion draft makes no changes at all to section 5 of TSCA, leaving in place all of the constraints EPA faces under current law.
One final note: It is interesting how much of the debate over TSCA reform legislation has focused on provisions that would affect far smaller numbers of chemicals than those that pass through EPA’s New Chemicals Program every year. Major contention has surrounded the number of existing chemicals EPA should be reviewing (with even the most ambitious proposal setting that number at 75 chemicals over a several-year period). Similarly, there has been much debate over the limited number of high-priority chemicals that states might want to, but under S. 697 could not, regulate during the period between when EPA takes up such a chemical and when it takes final action. While those questions are important, far less attention has been paid to how EPA’s reviews of new chemicals would be affected by the various TSCA reform proposals; yet, many hundreds of new chemicals undergo such reviews year in and year out. As this post makes clear, the reform proposals differ starkly with respect to how new chemicals would be reviewed prior to market entry.
Next up: How chemicals are selected for safety evaluations.
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EPA Official Takes Issue With Chemical Reform Bill
Apr 16, 2015 | Manufacturing.Net
By Andy Szal
A top U.S. Environmental Protection Agency administrator expressed concerns Tuesday about provisions of a chemical regulations overhaul pending in Congress.
The proposal, offered by Rep. John Shimkus, R-Illinois, would in part enable industry groups to request chemical assessments from the EPA. The agency would then be required to finish a review within six months, although industry would foot the bill for the investigation.
Critics alleged industry groups could seek evaluations of less risky substances in an effort to halt probes into more dangerous chemicals.
Jim Jones, assistant administrator of the EPA's chemical safety office, told Shimkus' subcommittee that the six-month deadline could "delay evaluations for some of the most dangerous chemicals indefinitely," according to The Hill.
Jones also said the bill's requirement that the EPA identify chemical risks prior to initiating an assessment could undermine the entire reason for an investigation, while he expressed concern that the EPA could be forced to factor costs into decisions about assessments.
Jones said the agency has not taken an official position on the bill.
The Shimkus proposal is one of a handful of chemical regulations bills moving through Congress. Sens. David Vitter and Tom Udall offered a bipartisan TSCA measure, while Sens. Barbara Boxer and Edward Markey authored a Democratic alternative.
Lawmakers in both parties have acknowledged the need for an update to the Toxic Substances Control Act, the only 1970s-era environmental law that hasn't seen an update in recent decades.
Under the current law, the EPA has tested only 200 chemicals and regulated five; some 80,000chemicals are currently used in commerce. -
EPA Moving Toward Potential NMP, Methylene Chloride Ban
Apr 15, 2015 | InsideEPA
EPA has begun developing a proposed Toxic Substances Control Act (TSCA) section 6 rule that could restrict or prohibit the use of the paint-stripping chemicals n-methlpyrrolidone (NMP) and methylene chloride, after finding that the chemicals pose a risk to human health.
According to the agency's recently released “Action Initiation List” of rulemakings launched in February, EPA in 12 months or less will issue a notice of proposed rulemaking on the TSCA rule, aiming to determine whether the two substances used in commercial and consumer paint and varnish strippers pose an unreasonable risk to human health and the environment.
In early March, EPA toxics officials said the agency is mulling the possibility of initiating a rare ban of methylene chloride, indicating a continued focus on regulating "existing" chemicals on the heels of the agency's plans toexplore similar restrictions on the common degreasing solvent trichloroethylene.
Methylene chloride, also known as dichloromethane, is classified as a human carcinogen. In a risk assessment issued last August, the agency concluded that the chemical's use as a paint stripper posed health risks to workers and consumers, as well as to bystanders. The agency estimated that more than 230,000 workers nationally are exposed to methyl chloride products, an Aug. 28 press release said.
Last last month, EPA finalized a TSCA assessment of NMP that found the chemical poses acute and chronic risks to pregnant women or women of child-bearing age who have high exposure to the substance. NMP is an alternative to methylene chloride.
TSCA Section 6 gives EPA to authority to restrict substances that pose unreasonable risks, through measures ranging from warning labels and record-keeping requirements to limits or a ban on the manufacture, processing or distribution of a substance.
But the agency has not attempted restricting a chemical under TSCA section 6 since 1991, when the U.S. Court of Appeals for the 5th Circuit vacated an EPA section 6 ban on most uses of asbestos.
As legislative efforts to reform TSCA have dragged on for years, the Obama EPA announced that it intended to more rigorously pursue its TSCA regulatory authorities.
In 2012, EPA announced that staff had prioritized some 83 chemicals for risk assessment of various consumer uses. If human or environmental risks were found in the assessments, these would be regulated, officials said.
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‘The Human Experiment’ Movie Review
Apr 16, 2015 | The Washington Post
By Stephanie Merry
We’re all just lab rats, subject to endless clinical trials with every move, drink, bite and breath. That’s the paralyzing message of “The Human Experiment,” a documentary about the effects of an unregulated chemical industry that makes its case with more passion than science.
Recently, the regulation of chemicals has become one of those rare issues that has bipartisan support. The current law — the Toxic Substances Control Act, or TSCA — is full of loopholes. And, as the movie indicates, chemicals are generally considered innocent until proved guilty. In other words, just because that mascara or can of soup or carpet cleaner is being sold in stores doesn’t mean it won’t hurt you. (Just think what we’ve learned about formaldehyde, DDT and, just last month, Roundup.)
Since the movie was made, in 2013, a bipartisan bill has been drafted to overhaul the toothless TSCA. That’s heartening, even if not all environmental groups are pleased with the bill’s scope. In the meantime, “The Human Experiment” is here to scare the bejesus out of us with the reminder that everything we touch might end up giving us cancer.
Liberal activist Sean Penn produced the movie and narrates with fervor. Of course this issue is scary and people deserve to know the risks, but the movie undermines its own argument.
Case in point: One of the most affecting stories in the film follows a young man and woman who have tried for three years to get pregnant. The camera follows them along to the doctor as the woman gets an embryo implanted, and we see the heartbreaking experience as the pair learns, yet again, that it didn’t take. “What’s wrong with me?” she cries, burying her face. It’s an authentic and agonizing scene.
But did the chemical industry cause her fertility problems? Who knows? Some chemicals, such as the ubiquitous bisphenol A — a compound found in plastic bottles and can linings, among other things — might cause infertility, not to mention myriad other problems. But even the woman’s doctors admit they don’t know why she had trouble getting pregnant.
By presenting her story, directors Don Hardy Jr. and Dana Nachman are making a case for something they can’t prove. They are on more solid footing proving the ill effects of flame-retardant materials. (And for a really tremendous documentary about how those landed on the market, “Toxic Hot Seat” is a must-see with a more subtle approach.) Meanwhile, a detour into a green house-cleaning business does little more than serve as free advertising for the company.
The movie was nicely shot with flashy graphics to explain the data that does exist. But in the end, this film will persuade only those who already believe.
Unrated. At AMC Hoffman Center 22. Contains brief strong language. 90 minutes.
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House Cyber Bills May Hit Floor Separately
Apr 16, 2015 | The Hill - Cybersecurity
By Cory Bennett
The two House bills to increase public-private cybersecurity information sharing may hit the floor separately next week after all, despite weeks of speculation the pair would be combined.
The House Intelligence and Homeland Security committees have worked since January to develop two complementary bills.
Together, the measures would grant companies liability protection when sharing cyber threat data with civilian government agencies.
Committee leaders had hoped to merge their efforts before a floor vote to simplify the path to passage. But according to notifications from the House Rules Committee, the two bills will get individual floor votes.
Repeated breaches at top retailers and banks over the last year have exposed hundreds of millions of Americans’ personal data and shed a light on pervasive weak cybersecurity practices.
Those backing the bills — including many lawmakers, government officials and most industry groups — argue the government and private sector need to exchange more cyber data to better understand hackers and bolster the nation’s cyber defenses.
Privacy advocates remain concerned the potential law could create another outlet for the National Security Agency to collect Americans’ sensitive data.
Those same advocates had also worried about how the House might marry its two bills.
The Homeland bill, which would only give companies liability protections when sharing data with the Department of Homeland Security (DHS), was seen as stronger on privacy.
The language was more restrictive on what the government could do with the data it collected. The DHS is also seen as having strong technical capabilities for scrubbing personal data.
They had worried some of that verbage might be dropped when combining the bills.
The Intelligence bill would grant liability protections when companies are giving data to any civilian agency, such as the Treasury or Commerce Departments.
Now privacy-focused lawmakers could get a chance on the House floor to show which measure they prefer.
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2 Years After Texas Blast, Report Highlights Gaps in Information Sharing
Apr 16, 2015 | E&E - Greenwire
By Sam Pearson
Federal, state and local governments could do more to share information on where flammable and explosive materials are stored, which is necessary to avoid safety lapses, according to a new report.
The report, from the Center for Effective Government, released nearly two years after an explosion at a West, Texas, fertilizer plant killed 15 people, examined publicly available data reported by chemical storage facilities in six states.
The sites are required to share the information under the Emergency Planning and Community Right-to-Know Act and U.S. EPA's risk management program, which was established under the 1990 Clean Air Act amendments.
Under EPCRA, facilities that produce, store or use quantities of specific chemicals known as "Tier II" substances above certain thresholds are supposed to provide an inventory of the chemicals to a state oversight body, which shares it with a state emergency response commission and relevant local emergency response commissions. EPA receives facilities' risk management plans and shares them with local officials.
"Both approaches are inadequate and incomplete," the CEG report said.
The group found that this decentralized approach to chemical safety has resulted in wildly disparate approaches to managing the information. For example, the group was able to view Illinois' Tier II chemicals on a state website, while Texas and Nevada refused to release any information concerning the substances.
In addition, many substances are required to be reported under EPCRA, but are not required to be accounted for in a facility's risk management plan, which mandates that facilities consider the risks of 140 chemicals. Substances not included in the RMP requirements include acetone, calcium hypochlorite, dimethoate, fluosilic acid, methanol, phenol, styrene, toluene and xylenes, which can cause safety risks during an uncontrolled release, the report said. At least 632 million pounds of those chemicals were stored in nine states in 2012, according to data obtained by CEG.
It's also not clear how effective local emergency response committees are at managing safety risks. The group noted that when EPA surveyed the committees in 2008, 40 percent responded.
"The state-based reporting program under EPCRA is decentralized and complicated, and local emergency plans are focused on responding to a disaster, rather than preventing one," CEG President Katherine McFate said in a statement. "This continues to leave millions of Americans at risk."
Posting all risk-management plans and Tier II reports online would make it easier for first-responders and the public to make sense of the information, the group argued. CEG maintains its own website that hosts EPA's risk-management plans, but the agency does not maintain such a service of its own.
EPA is in the process of updating its risk management regulations but hasn't decided what changes it will require, Mathy Stanislaus, the agency's assistant administrator for solid waste and emergency response, told a Senate committee last year (E&E Daily, Dec. 12, 2014).
Texas lawmakers have not required any new regulations since the blast, and proposals to do so have faced opposition from industry groups and conservatives concerned about making it hard for companies to operate (Greenwire, April 1).
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Apr 16, 2015 | Cleveland Plain Dealer
By Jeb Bush
One of the greatest economic transformations in American history is less than a decade old and it's happening right here in Ohio.
Fracking and other new drilling techniques to unlock vast shale oil and gas reserves deep underground have given new life to cities like Youngstown and Canton. They've produced new wealth for property owners throughout Ohio, but especially farmers. They've put hope in the hearts of workers who've found manufacturing jobs with better pay and benefits.
You would think leaders in Washington would want to take every advantage of this newfound economic boon. But instead, the Obama administration is blocking pipelines, export opportunities and access to drilling on federal lands. If the Obama administration and other liberals had their way, Ohio workers, landowners and taxpayers wouldn't benefit from fracking at all.
This is a classic example of how bad government policy gets in the way of Americans who are just trying to find good-paying and secure jobs. This isn't limited to the energy industry, either. The Obama administration jams American workplaces with unnecessary rules and regulations, restrictions on land and energy use and the highest tax rates in the industrialized world. And in the end, it costs Ohio families and households a chance at the right to rise.
Underneath this state lies the Marcellus shale formation, the largest natural gas repository in the United States and the second largest in the world. Deeper still, the Utica shale formation yields large amounts of natural gas, natural gas liquids, and crude oil from wells in eastern Ohio and western Pennsylvania. These energy resources can be extracted in an environmentally responsible way and provide new opportunity for Ohio.
The oil-and-gas industry now employs more than 200,000 people in Ohio -- and promises more still. Long-term, oil and gas in Ohio will create new opportunities, if we support it.
The reason is simple: An abundant supply of affordable American-made energy helps fuel factories and powers offices at far cheaper prices, making American companies more competitive.
This is a game-changer. Now, the industrial Midwest can take on China. In a recent survey, slightly more than half of U.S. manufacturers with $1 billion or more in revenue said they were considering bringing jobs home from China in the future -- already, 16 percent have.
Cheaper energy is also critical to bringing down prices at the pump. The fracking revolution has helped us pump millions of gallons of oil -- helping relieve the high cost of filling up.
Now is the time to pursue smart policies so that we can reindustrialize our economy and lift up working families who have been squeezed by stagnating wages and high prices.
Let's start by getting rid of the roadblocks to our energy economy -- anything that keeps newfound energy supplies from reaching potential markets.
The Obama administration has continually blocked the Keystone XL pipeline, which is an essential piece of energy infrastructure. Getting pipelines built to carry energy safely through the United States is something the Obama administration should champion, not block.
Second, we have to lift the limits on fracking on federal land. Some of the largest oil shale deposits in the world lie beneath federal property, but energy development on federal lands has dropped by 27 percent since 2008. President Barack Obama's Interior Department recently unveiled new anti-fracking regulations that could threaten American energy production. These rules are a stepping stone to even more stringent regulations of energy production, whether on federal lands or elsewhere. Congress should block them and force the Obama administration to pull back.
Third, we need to end the decades-old policies that have hindered the export of liquefied natural gas and effectively banned the export of oil. Capitalizing on our status as the world's largest producer of natural gas and soon-to-be largest producer of oil will reduce our trade deficit and create even more manufacturing jobs.
Finally, we should make sure the opportunities from new energy supplies are available to everyone. That will require better education and training programs to equip people with the technical skills they need for energy production and other manufacturing-based industries.
If we put the right policies in place, the energy revolution can contribute to an American economic renaissance and rebirth of manufacturing that will strengthen middle class families here in Ohio, and everywhere across the nation. We have to get this right. The stakes couldn't be higher.
Jeb Bush, the former governor of Florida, is a likely Republican candidate for president. He speaks this afternoon at the Ohio Chamber of Commerce's annual meeting in Columbus.
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Jeb Bush Slams New Fracking Rule in Op-Ed
Apr 14, 2015 | E&E PM
By Daniel Bush
Former Florida Gov. Jeb Bush (R) waded into the debate over hydraulic fracturing today, offering a full-throated endorsement of the controversial oil and gas drilling method and slamming the Obama administration's new fracking rule in a newspaper op-ed.
Fracking has helped unleash an energy boom, created thousands of new jobs in Ohio and other states around the country, and lowered gas prices, says Bush, an all-but-certain 2016 Republican presidential candidate, in the Cleveland Plain Dealer op-ed.
"You would think leaders in Washington would want to take every advantage of this newfound economic boon," Bush says, but instead the Obama administration has proposed drilling regulations that would ensure "Ohio workers, landowners and taxpayers wouldn't benefit from fracking at all."
Bush singles out a final rule released last month by the Interior Department that would require companies to disclose the chemicals they use in underground oil and gas wells and store toxic drilling waste in above-ground metal tanks.
Industry groups are fiercely opposed to the measure, while environmental organizations have said it doesn't go far enough to reign in potential spills, water pollution and other fracking hazards.
"These rules are a stepping stone to even more stringent regulations of energy production, whether on federal lands or elsewhere. Congress should block them and force the Obama administration to pull back," Bush says in the op-ed.
Bush argues that oil and gas in the Marcellus Shale formation that runs under parts of Ohio, Pennsylvania and New York could be extracted in an "environmentally sustainable way," though he doesn't provide further details.
In making his case directly to Ohio voters, Bush is seeking to build support in a key swing state that he'll need to carry in the general election if he becomes the GOP presidential nominee.
In the op-ed, Bush also outlines his support for the Keystone XL pipeline and calls for an end to the decades-old ban on crude oil exports. Bush laid out a similar energy platform at a speech in Colorado earlier this year (Greenwire, April 8).
Bush is expected to formally enter the presidential race later this year. He'll join a crowded field of GOP hopefuls that already includes Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida, who announced his candidacy yesterday (E&E Daily, April 14).
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Judges Appear to Lean Toward Waiting in Climate Case
Apr 16, 2015 | PoliticoPro - Whiteboard
By Erica Martinson
Federal judges appeared unsure today about whether the EPA has legal authority for its proposed greenhouse gas rule for existing power plants, but even more wary about expanding the court’s authority by judging a rule that is not yet final.
Judges Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh heard more than two hours of oral arguments this morning in the D.C. Circuit Court of Appeals in a trio of cases over the EPA's proposed Clean Power Plan. The final rule is expected this summer.
States, utilities and coal industry interests challenging the proposed rule have asked for an extraordinary “writ” to stop the rule in its tracks, for review of a 2012 settlement agreement in which the agency agreed to do the rule, and for review of whether EPA has the statutory authority to regulate power plants under Section 111(d) of the Clean Air Act.
The judges were the most dismissive of arguments for issuing a writ and bringing up the settlement agreement years later.
But they seemed uncertain about what to do on the merits of the case — whether EPA can regulate greenhouse gases from power plants at all given disagreement over the law. To the contrary, the judges seemed most comfortable arguing over jurisdiction, suggesting that waiting just a few more months for a final rule may be the most prudent course.
Nearly all of the seven attorneys arguing before the court were treated to relatively long periods of quiet from the judges, with no questions asked. -
Court Skeptical of Challenge to EPA's Climate Rule
Apr 16, 2015 | The Hill - E2 Wire
By Timothy Cama
Two of the three federal judges weighing a challenge to the Obama administration’s proposed emissions standards for power plants appeared skeptical Thursday of striking down the regulations before they are even finalized.
A coalition of energy companies and 15 states seeking to block the administration’s landmark climate rule acknowledged that the DC Circuit appeals court, which generally has jurisdiction over agency regulations and is seen as the country’s second most powerful court, has never before overturned a draft rule.But lawyers told the judges that this case is extraordinary and that the Environmental Protection Agency (EPA) has already decided it is going to make the regulations final.
“Do you know of any case in which we’ve altered a proposed rulemaking,” Judge Thomas Griffith asked Edward Lin, the solicitor general for West Virginia, at the case’s oral arguments Thursday morning in Washington.
“In the nature of an appellate case, never,” Lin told the judges.
“There’s always a first. And we think this is the last,” Lin later said, prompting Griffith to ask, “do you want to make history?”
Judge Brett Kavanaugh was also skeptical.
“For us to get in the middle of this before that happens is highly unusual,” Kavanaugh told Lin.
“The formality of the final rule being promulgated is the dividing line” between when a court can and cannot review it, he said.
Judge Karen Henderson was more open to the idea, saying that it is clear that the EPA has made a final decision that it can legally use the Clean Air Act to regulate carbon from power plants, even though the proposal is still subject to a public comment period.
“I see a closed mind in terms of the legal issue,” she said. “That’s not going to change with the comments.”
All three judges were appointed by Republican presidents, and Kavanaugh and Griffith have been especially skeptical of the EPA’s regulatory authority. That spurred supporters of the EPA rule to speculate that it would be a tough case for the Obama administration.
At issue is the EPA’s rule, proposed in June 2014, which seeks to cut carbon emissions from the power sector 30 percent by 2030. It sets individual carbon goals for states, which must then formulate their own plans to meet the goals.
In the history of federal regulations, courts have always let the federal government go through its regulatory process before deciding an action is legal.
Justice Department attorneys told the courts that the EPA’s process, by inviting anybody from the public to submit comments, is the first step toward having the concerns of states and energy companies heard.
Those parties will be able to then file lawsuits if they are not pleased.
“They are not entitled to the unprecedented relief of an extraordinary writ,” Brian Lynk, a Justice Department attorney arguing on the EPA’s behalf, told the judges.
The lawyers also presented the merits of their case to the court.
The Clean Air Act’s 1990 amendments passed with two conflicting amendments, one from the House and one from the Senate, on limits of “double regulating” power plants.
The House version said that the EPA cannot limit carbon emissions as it wants to do if plants’ pollution is already regulated, as is the case with mercury pollution rules.
But the Senate version was more permissive, and the two were never reconciled.
“It very obviously bars EPA from using 111(d) to regulate source categories ... that were already regulated,” said Laurence Tribe, who was arguing for Peabody Energy, a major coal producer.
Tribe teaches at Harvard Law School, and once employed President Obama as an assistant.
Murray Energy Corp., another coal producer, is the main company challenging the rule.
But the Obama administration said that the law is ambiguous and that the EPA has the right to interpret it.
“The question the court has to answer … is limited to whether EPA gets its ordinary opportunity to interpret law,” said Amanda Shafer Barnes, another Justice Department attorney.
“Do we get to do our normal job here?” she asked, referring to the ability agencies have to interpret ambiguous laws.
The judges did not say when they would rule on the case. But the EPA has said it plans to make the regulation final this summer, which could make the case moot and allow the companies and states to file suit against the finalized regulation. -
Skeptical Judges Question Attack on EPA's Proposed Rule
Apr 16, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
More than a dozen predominantly Republican-led states, coal companies and other industry groups today pressed federal judges to take the unusual step of blocking U.S. EPA from finalizing greenhouse gas standards for existing power plants.
The carbon limits, a critical component of President Obama's Clean Power Plan, would cut heat-trapping emissions by 30 percent from 2005 levels by 2030, shifting the country from coal-based power to renewables like wind and solar.
Challengers -- 15 states led by West Virginia and other potentially regulated parties led by Ohio-based Murray Energy Corp. -- are asking the U.S. Court of Appeals for the District of Columbia Circuit to issue an "extraordinary writ" to halt EPA in the rulemaking process.
In arguments that stretched beyond two hours in a packed courtroom, West Virginia Solicitor General Elbert Lin told the three-judge panel that EPA's public statements have made it clear the agency "has made up their mind" and will proceed with a final rule similar to the proposal, issued last summer.
Lin immediately ran into trouble with two members of the three-judge panel who aggressively pressed him on whether his lawsuit should be immediately dismissed because EPA has yet to finalize the rule.
Courts typically don't entertain challenges to rules before they are finished. Previous attempts to block EPA from finalizing greenhouse gas rules -- such as a 2012 bid to stop the agency from finalizing greenhouse gas rules for new power plants -- were quickly dismissed.
Judge Thomas Griffith, a Republican appointee, asked Lin whether there is "any case in which we have halted a proposed rulemaking."
"Why in the world would we resort to an extraordinary writ?" he asked, adding that the climate regulations seemed to be going through a "garden-variety rulemaking" process.
Judge Brett Kavanaugh, another Republican appointee, also seemed open to rejecting the case on those procedural grounds. He said the draft rule is "not that extraordinary" and that the final rule is typically "the dividing line between judicial review and waiting" for a court to act.
Lin countered that EPA has already directed states to start taking action in preparation for the rule.
Justice Department attorney Brian Lynk sought to drive home the judge's remarks, arguing that the challengers lack standing -- a legal procedural hurdle -- because they cannot show how a proposed regulation has injured them. Further, he said, they don't know how EPA may change the rule in response to millions of public comments submitted on the proposal.
"We don't know what a final rule will look like," he repeatedly said.
The third judge, Karen Henderson, another Republican appointee, seemed more open to the challengers on this point than her colleagues. She noted that one declaration provided in the case by a rural electricity provider said it would take up to four years just to prepare for the final rule.
"That's extraordinary," she said.
The arguments provided a preview of litigation to come if and when EPA finishes the rules this summer.Focus on legislative 'glitch'
Primarily, the challengers argue that EPA lacks authority under the Clean Air Act to promulgate the rules.
The challengers' position boils down to a legislative "glitch" that occurred when Congress amended the Clean Air Act in 1990.
Technically, Congress passed -- and President George H.W. Bush signed -- two versions of the law's relevant section, 111(d). The challengers say the House version prohibits EPA from issuing regulations under that section for sources of pollution it has already regulated.
EPA issued air standards for mercury and other toxics spewed from power plant smokestacks in 2012, they contend, so the agency is prohibited from promulgating the greenhouse gas standards.
"The agency has simply taken this section," said Geoffrey Barnes of Squire Patton Boggs, representing Murray, "and attempted to create a scheme where Congress said it could not go."
EPA, with the backing of a dozen other states and environmental groups, offer several counterarguments. First, it noted that the other version of Section 111(d) -- the one that originated in the Senate -- says only that EPA cannot redundantly regulate a pollutant. That would allow its greenhouse gas proposal.
Most important, it emphasized that the two versions are ambiguous, and under the Supreme Court's landmark 1984 Chevron v. Natural Resources Defense Council, the agency deserves deference from the court in interpreting unclear statutory language.
It also contended that the challengers' reading of the House version is wrong because it would weaken EPA's authority under that section of the law when Congress' stated intent in the 1990 amendments was to strengthened EPA's regulatory authority.
The judges only need to decide this issue if they agree the challengers have cleared the initial threshold issue of challenging a proposed rule. But if they do reach the merits of the litigation, there was some indication that they were willing to defer to EPA.
The judges seemed intrigued today with "dueling amendments," with Griffith calling it a truly "unusual" situation.
Griffith pointed to the June 2014 Supreme Court decision in Scialabba v. Cuellar de Osorio, in which the court grappled with seemingly conflicting statutory language determining whether the children of immigrants seeking visas retain their spots assigned to them in the painfully long bureaucratic queue after they "age out" by turning 21.
One clause of that law seemed to clearly grant that benefit to all children of applicants, while the following clause seemed to significantly restrict it.
The court held that in such a situation, the agency should be afforded the deference established by Chevron (Greenwire, July 24, 2014).
Griffith said the Supreme Court's holding in Scialabba was applicable to the two versions of Section 111(d).
Referring to the Supreme Court, Griffith said, "They say this is a Chevron case."
DOJ attorney Amanda Shafer Berman agreed with that assessment. Primarily, she argued, the lawsuit is premature because EPA has not been given a chance to explain its legal rationale in the final rule.
If there is a "scintilla of a thread" of ambiguity, she said, EPA deserves the opportunity to interpret the statute.
"There's an inconsistency here," she said. "We have to look at both."Is comment period a 'sham'?
EPA also faced some tough questioning that seemed to have been forecast by Harvard Law School professor Laurence Tribe, a former mentor to Obama who is representing coal giant Peabody Energy Corp. in the case (Greenwire, April 6).
Tribe said EPA's legal underpinnings for the rule -- its interpretation of Section 111(d) -- appears set.
The agency "is premising its actions on a view of the law that is not going to change," Tribe said. "One needn't wait to see whether the guillotine is going to drop."
Griffith picked up that idea and pressed EPA's attorneys about EPA Administrator Gina McCarthy's recent statements that the agency is moving forward with the proposal.
"What are we to do with statements that there will be no change?" Griffith asked, adding that such remarks could be turning the public comment period into a "sham."
Tribe also weighed in on the substantive issue regarding the dueling amendments. Under his reading, he said, there was no ambiguity between the two amendments, saying that there is "no incompatibility here," and EPA is prohibited from using the law as it is.
DOJ's Berman, however, called Tribe's assertions "flat-out wrong."
"If this isn't an ambiguity," she said, "I really think it begs the question, 'What is?'"
The states challenging the proposed standards are: Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wyoming and Wisconsin. Several industry groups such as the Utility Air Regulatory Group also support blocking EPA from finalizing the rules.
EPA is backed by California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, as well as environmental groups like the Sierra Club.
Rulings in Murray Energy Corp. v. EPA and West Virginia v. EPA are expected later this year.
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D.C. Circuit Appears Likely To Reject Suit Over Climate ESPS
Apr 16, 2015 | InsideEPA
Appellate judges on the U.S. Court of Appeals for the District of Columbia Circuit appear likely to reject -- on procedural grounds -- states' and industry groups' novel challenges to EPA's proposed greenhouse gas (GHG) rule for existing power plants, according to Inside EPA's Dawn Reeves, who was in the court.
Reeves reports that the court appears likely to reject the petitioners' arguments on jurisdictional grounds because the rule is not yet final. Two of the three judges -- Brett Kavanaugh and Thomas B. Griffith -- were especially skeptical that the state and industry challenges could proceed.
They asked lawyers for examples of any time a court has blocked a proposed rule, but none of the lawyers could cite an example.
Although the suits, Murray Energy et al., v. EPA et al., and West Virginia et al. v. EPA et al., appear likely to be dismissed on procedural grounds, the judges previewed a host of questions about the merits of the challenges that will likely be raised in future litigation once the rule is finalized. That suggests the issues may not be as cut-and-dried as EPA proponents have said in the past.
The central issue in the litigation is whether, as a threshold matter, EPA has authority to craft its proposed existing source performance standards (ESPS) under section 111 of the Clean Air Act because it already regulates power plants' toxic emissions under section 112.
Each of the suits say EPA’s proposed rule is barred because the agency cannot regulate power plants’ GHG emissions under section 111(d) when it already regulates the plants’ mercury emissions under section 112.
But the issue is complicated because House and Senate amendments to section 111(d) were never reconciled in a conference committee before the 1990 air act amendments were signed into law.
The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section.
The House amendment could be read as prohibiting the ESPS because the focus of the exclusion is on source categories, not pollutants, though EPA has offered an interpretation that would allow it to proceed even under the House language.
But the suits face procedural hurdles because EPA has not yet finalized the GHG rule, which is typically the point at which courts have jurisdiction to review a regulation.
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Support for Carbon Tax Reaches Almost 70%
Apr 16, 2015 | E&E - Climatewire
By Evan Lehmann
A large majority of Americans support taxing carbon emissions, according to polling results released yesterday, and favorability rises to two-thirds if the tax is used to send money back to households.
The survey by Stanford University and Resources for the Future also found that efforts by environmental organizations to increase urgency around climate change by pointing to extreme weather isn't working, and neither are efforts to erode people's belief in global warming by questioning the science.
"There is really no evidence here at all that the disinformation campaign has successfully, dramatically reduced confidence in environmental scientists," said Jon Krosnick, a Stanford professor who oversaw the poll.
He points to consistent levels of trust in climate scientists since 2006, when the survey first asked the question. In the latest poll, 71 percent of respondents say they trust scientists at least moderately. Nine years ago, the number was 72 percent.
On a carbon tax, the poll found that 61 percent of respondents favor taxing corporations for releasing greenhouse gas emissions. There's stronger support for a carbon tax that provides rebates to American households; 67 percent agree with that policy.
That roughly equates to a revenue-neutral carbon tax, which is being promoted among a small but growing number of Democratic lawmakers and conservative think tanks. The policy is based on the idea that national tax revenue will stay the same with the introduction of a carbon tax, because other taxes, like those on income or corporations, will be reduced.
"We're tremendously encouraged," Charles Komanoff, director of the Carbon Tax Center, said of the poll's findings. "We're not dumbstruck by it, because we've been sensing a shift in opinion that the tide is moving our way. But it's fantastic to get this kind of confirmation."
The Niskanen Center is a new proponent of taxing carbon. The libertarian group recently proposed a plan to swap out U.S. EPA's Clean Power Plan for a revenue-neutral carbon tax. One of its key arguments is based on the idea that carbon pricing is a political reality and conservatives could be left on the sidelines if they continue to question the science behind climate change.Public is willing; Congress is not
Jerry Taylor, president of the Niskanen Center, said the poll shows that "the public is willing to pay a price" to reduce emissions. He said it's notable that respondents showed strong support for a carbon tax that doesn't give rebates to the public.
"It speaks to greater public concern about climate change than some people would like to admit, and that people don't need to be bribed into taking action to reduce greenhouse gas emissions," Taylor said.
As for a swap, Komanoff estimates that the Clean Power Plan could be replaced fairly cheaply. He calculates that a $2.15-per-ton carbon tax could result in the same level of emission reductions as the EPA power plant rules, which are expected to be released this summer. The tax would rise by $2.15 every year until 2030, and it would only cover emissions from the electricity sector.
"That speaks not to how great a carbon tax is, but rather how meager the Clean Power Plan target is," Komanoff said.
Most experts suggest that a carbon tax would begin at about $20 a ton and go up annually, potentially resulting in much deeper cuts to carbon emissions than the Clean Power Plan.
Despite the poll's finding of support for a carbon tax, the policy's favorability could tumble if it were ever debated in Congress, Taylor said. He noted that Americans generally support higher taxes on corporations, whether it's related to climate change or not.
In the real world, political opponents of taxing carbon -- or taxing anything -- would argue that Americans would ultimately pay the increased costs placed on corporations, he said.
"It's very easy for people to say, 'Sure, some other guy should be paying a lot of money to reduce greenhouse gas emissions,'" Taylor said. "For whatever reason, it's not always obvious to the public that taxing corporations will likely result in those higher tax bills being passed onto consumers in higher energy prices."Want GOP votes? Embrace climate change
Sen. James Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, underlines that point. He said in a statement that a carbon tax would fall especially hard on poor and fixed-income Americans, because they use a larger percentage of their income on energy than wealthier households.
"These policies have long been about courting an extremist agenda from environmentalists and expanding government control into every facet of American life," said Inhofe, who rejects the idea that humans are changing the environment.
But Krosnick says that's not a message that most voters are eager to hear.
Poll findings unveiled in January, prior to yesterday's wider release, revealed that 66 percent of respondents were more likely to vote for a political candidate who believes that humans are responsible for rising temperatures and wants to address it. Twelve percent said they would be less likely to vote for that candidate, and 21 percent said the candidate's views had no effect on their decision.
Alternatively, the poll found that 67 percent of respondents would be less likely to vote for someone who calls climate change a hoax. Thirteen percent would be more likely to support that candidate. Finally, 44 percent said they would be less likely to support someone who says, "I am not a scientist," when asked about global warming, while 27 percent would be more likely.
The attitudes of partisans are more telling. For example, twice as many Republicans said they would vote for a green candidate than those who said they wouldn't. Forty-eight percent of Republicans support candidates who believe in man-made global warming, compared with 24 percent who don't.
"If a Democrat wants to win by recruiting some Republican votes, this is a good way to do it," Krosnick said. "They will win more than they lose."
In a finding that's perhaps more relevant, the poll found that 64 percent of independents were more likely to vote for a green candidate, compared with 13 percent who were less likely to give their support.
The survey also suggests that efforts to raise awareness about climate change by pointing to extreme weather isn't working.
The poll found that attitudes about droughts, storms and unstable weather have stayed steady since 2012, despite the occurrence of record heat in the West and record cold in the East.
Fifty-four percent of respondents say global warming has caused more drought, while 55 percent say it's resulted in more storms. Those numbers are unchanged from previous surveys, Krosnick said, suggesting that strategies stressing weather risks have been unpersuasive.
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