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(ACC Mentioned) Business Groups: NY Leaders Should Support Federal Efforts to Regulate Chemicals, Not State 'Toxic Toys' Legislation
Jun 11, 2015 | Auburn Citizen
By Robert Harding
A collection of national and state-level business groups are throwing their support behind federal legislation to modernize the Toxic Substances Control Act. -
Major Cosmetics Firms Get Behind Federal Bill
Jun 11, 2015 | Chemical Watch
By Kelly Franklin
The Personal Care Products Council (PCPC) and several large cosmetics companies support the Personal Care Products Safety Act (S 1014) because it would modernise federal safety standards and halt the growth of state-level legislation (CW 23 April 2015). -
US EPA Names Safer Choice Label Award Winners
Jun 11, 2015 | Chemical Watch
The US EPA has recognised 21 entities as Safer Choice Partner of the Year for their contribution to the design, manufacture, promotion and use of products labelled under the voluntary programme. -
EPA to Honor 21 Companies for Using Safer Chemicals
Jun 11, 2015 | E&E - Greenwire
By Sam Pearson
U.S. EPA will honor 21 companies for moving to safer chemical alternatives under a nascent program to promote less toxic alternatives through voluntary labels. -
GOP Senator Floats Holding EPA Nominees Over Regulations
Jun 11, 2015 | The Hill - E2 Wire
By Devin Henry
Sen. Dan Sullivan (R-Alaska) has suggested holding up three Environmental Protection Agency (EPA) nominations until officials provide more legal justification for their rule-making. -
Republicans Grill 3 Long-Stalled Obama EPA Picks
Jun 11, 2015 | E&E - Greenwire
By Amanda Peterka
Three long-stalled Obama administration nominees for posts at U.S. EPA today faced tough questions from GOP senators about the agency's policies and its authority as a whole. -
Oil Groups Defend Effort to Temporarily Block Fracking Rules
Jun 11, 2015 | Reuters
By Ayesha Rascoe
Two oil and gas groups have defended their push to block the new U.S. rules for hydraulic fracturing on public lands pending the outcome of their legal challenge, slamming the government's argument that drillers can avoid the regulations if they choose. -
Group Uses Prop 65 Against Fracking Firm Over Discharges
Jun 11, 2015 | E&E - Greenwire
By Sam Pearson
A California advocacy group is using a new application of the state's chemical warning label law to go after a hydraulic fracturing operator's chemical discharges. -
Final Rule 'Even Worse' Than Original Proposal -- Farm Bureau
Jun 11, 2015 | E&E - Greenwire
By Annie Snider
The final version of the Obama administration's controversial water rule is worse for farmers and ranchers than what was originally proposed last spring, the American Farm Bureau Federation argued today. -
A Frenzy Over Birdbaths, Paddles and the Waters of the US
Jun 11, 2015 | The Hill - E2 Wire
By Former Rep. Tim Bishop (D-N.Y.)
Too often in Washington, myth becomes fact, rhetoric becomes reality, hysteria replaces reason and inconvenient truths are ignored. -
Former Sen. Lincoln Talks Prospects for Energy Bill Passage
Jun 11, 2015 | E&E TV
How will this week's U.S. Court of Appeals for the District of Columbia Circuit decision to reject an attempt by 15 states to block U.S. EPA from finalizing its Clean Power Plan impact the debate on the plan as a final rule is set to be released this summer? -
Democrats Seek GOP Support for Carbon Tax Bill, Face Questions About Jailing Skeptics
Jun 11, 2015 | E&E - Climatewire
By Evan Lehmann
Two liberal senators appealed to conservatives yesterday to support a carbon tax, opening what they hope is a rebooted debate on climate change that focuses on legislation over science. -
NAAQS Ruling Spurs Debate On Fate Of Bid For Giant Nonattainment Area
Jun 11, 2015 | InsideEPA
By Stuart Parker
EPA and some states are split over whether a federal appeals court ruling broadly upholding EPA's approach to designating areas as in or out of attainment with the ozone national ambient air quality standard (NAAQS) helps or hurts states' novel push to create a giant nonattainment area covering several states.
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Jun 11, 2015 | Auburn Citizen
By Robert Harding
A collection of national and state-level business groups are throwing their support behind federal legislation to modernize the Toxic Substances Control Act.
The coalition, known as New York Businesses United for Product Safety, are urging Gov. Andrew Cuomo and state legislative leaders to support the TSCA Modernization Act, which aims to update standards for regulating chemicals.
The bill has bipartisan support. U.S. Rep. Paul Tonko, an Albany-area Democrat who served as a state assemblyman and president of the New York State Energy Research and Development Authority, is supporting the legislation.
New York Businesses United for Product Safety view the bill as an appropriate measure, especially as state legislators push a bill, the Child Safe Products Act, which would increase state regulation of chemicals in children's products.
Several groups, including the American Chemistry Council and the Business Council of New York State, oppose the Child Safe Products Act.
"We believe that chemical regulation should continue to be handled by the federal government," the coalition said in a joint statement. "(The Child Safe Products Act) would not protect children and would only succeed in hurting businesses across New York that employ thousands of New Yorkers.
"A much needed update to federal chemical regulations would give all New Yorkers and all Americans increased confidence in the products they buy and use every day."
The Child Safe Products Act is supported by prominent environmental groups, including Environmental Advocates of New York and the Sierra Club.
While the legislation has been approved by the Assembly, it hasn't been brought to the floor for a vote in the Senate. Environmental groups say there is a clear path to passage in the Senate, with nearly 40 senators signing on as cosponsors of the bill.
But the chairman of the Senate Environmental Conservation Committee, state Sen. Tom O'Mara, has said he won't hold a vote on the Child Safe Products Act. He believes the legislation is too broad and hopes to develop a compromise measure that would address concerns raised by industry groups.
Any action on the Child Safe Products Act or a compromise bill must be taken by Wednesday — the final day of the 2015 legislative session.
If the Senate doesn't vote on the bill, it must be reintroduced for consideration in 2016.
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Major Cosmetics Firms Get Behind Federal Bill
Jun 11, 2015 | Chemical Watch
By Kelly Franklin
The Personal Care Products Council (PCPC) and several large cosmetics companies support the Personal Care Products Safety Act (S 1014) because it would modernise federal safety standards and halt the growth of state-level legislation (CW 23 April 2015).
S 1014 would amend the Federal Food, Drug, and Cosmetic Act (FD&C Act), enacted in 1938; subsequent amendments to the Act have expanded the Food and Drug Administration's (FDA) authority over many product sectors, but the cosmetics provisions have remained largely unchanged for 75 years.
Measures in the bill would amend the FD&C Act to:mandate that manufacturers report adverse product effects to the FDA;grant the FDA mandatory recall authority;require the FDA to develop and standardise Good Manufacturing Practices (GMPs);institute a registration system of all facilities, products and ingredients, along with an annual registration fee, based on the business's gross revenue; andtrigger an annual review process that would require the FDA to assess the safety of at least five chemical ingredients per year, and would allow it to impose ingredient content restrictions or labelling requirements, based on those findings.
“We've been at this effort for legislation for at least seven years,” said John Hurson, executive vice president of government affairs for the PCPC. “Industry and environmental groups have been on very different sides in this process, and finally there has been enough work and understanding from both sides that we could get very close to a compromise bill – but we're still not there yet.”
“Public health and safety laws, passed in the late 1930s, deserve to at least be revisited for accuracy and relevancy,” said Jeff Smith, president of the Johnson & Johnson family of companies, which backs the bill.
Just as with chemicals and the delay in reforming the 1978 Toxic Substances Control Act, the absence of updated federal oversight of cosmetics ingredients has meant many states have pursued their own legislation. Mr Hurson noted that the PCPC is tracking more than 250 local legislative efforts that would affect cosmetics. Although certain state regulations, such as California's Proposition 65, would be grandfathered under the bill, the FDA's oversight would pre-empt many future state laws (CW 2 October 2014).
Lezlee Westine, PCPC president and CEO, said that the trade group “believe[s] well-crafted, science-based reforms will enhance industry’s ability to innovate and further strengthen consumer confidence in the products they trust and use every day. The current patchwork regulatory approach, with varying state bills, does not achieve this goal.”
However, the Independent Cosmetic Manufacturers and Distributors (ICMAD), a trade group representing entrepreneurial cosmetic and personal care product companies, has voiced its opposition to the proposed bill, saying that it “places too large a burden on small business, stifles innovation in the cosmetics and personal care industry, and does not provide appropriate and significant national uniformity.”
Currently, the Cosmetic Ingredient Review (CIR), an independent panel established in 1976 with FDA support and funded by the PCPC, evaluates chemical ingredient safety. The PCPC, FDA and the Consumer Federation of America sit as non-voting members on the panel.
Critics, such as the Environmental Working Group (EWG), say that the CIR lacks the authority to restrict ingredient usage and has only deemed unsafe a small volume of chemical groups. It is yet to be determined what role the CIR and its 30 years' of chemical ingredient data could play in the FDA's ingredient review process.
Introduced on 20 April, the bill has been referred to the Senate Committee on Health, Education, Labor and Pensions.
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US EPA Names Safer Choice Label Award Winners
Jun 11, 2015 | Chemical Watch
The US EPA has recognised 21 entities as Safer Choice Partner of the Year for their contribution to the design, manufacture, promotion and use of products labelled under the voluntary programme.
Previously known as the Design for the Environment (DfE) label, the Safer Choice label aims to promote safer product design and green chemistry alternatives through “informed substitution” of chemicals. To qualify for the label, a product must meet human health and environmental health criteria laid down by the programme. The label was revamped in March to make it more consumer-oriented (CW 9 June 2015).
Partner of the year award winners represent a variety of organisations. They include the Consumer Specialty Products Association, the Washington State Department of of Ecology, AkzoNobel and retailer Staples.
“Our scientists employ a stringent set of human health and environmental safety standards when reviewing products for the Safer Choice programme, so a product with the label is backed by EPA science,” said EPA administrator, Gina McCarthy.
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EPA to Honor 21 Companies for Using Safer Chemicals
Jun 11, 2015 | E&E - Greenwire
By Sam Pearson
U.S. EPA will honor 21 companies for moving to safer chemical alternatives under a nascent program to promote less toxic alternatives through voluntary labels.
The Safer Choice program sprung from a revamp of EPA's Design for the Environment labeling initiative.
EPA will honor the Safer Choice companies at a June 22 ceremony at the Ronald Reagan Building and International Trade Center in Washington, D.C.
"These winners demonstrate that Safer Choice-labeled products, which are safer for homes, schools, and workplaces and perform well, can also be good for business," EPA Administrator Gina McCarthy said in a statement.
Some industry groups have balked at what they say is the program's reliance on unsubstantiated claims regarding chemical compounds. In particular, the use of a "fragrance-free" label has drawn the scrutiny of the fragrance industry, which has urged that it be withdrawn (Greenwire, May 7).
The awards:
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GOP Senator Floats Holding EPA Nominees Over Regulations
Jun 11, 2015 | The Hill - E2 Wire
By Devin Henry
Sen. Dan Sullivan (R-Alaska) has suggested holding up three Environmental Protection Agency (EPA) nominations until officials provide more legal justification for their rule-making.
The Senate Energy and Public Works Committee was hearing testimony from three EPA assistant administrator nominees when Sullivan asked if they thought a hold was the right way to force agency higher-ups to answer further questions about the legality of their regulations.
“Do you think it’s a legitimate exercise of our authority as the Congress, as the oversight committee, to put a hold on your nominations or confirmations until we get legitimate answers from the administrator on, for example, the Waters of the U.S. [rule]?” Sullivan said.
The nominees — Ann Dunkin, Jane Nishida and Thomas Burke — all demurred. But Sullivan said he might stop their nominations from going forward if EPA officials, including Administrator Gina McCarthy, don’t respond to his and other Republicans’ concerns.
“You’re a bit in the crossfire of what I actually think is a really, really important issue that your boss seems to ignore,” he said the nominees. “And that’s not acceptable.”
Committee Chairman James Inhofe (R-Okla.) said later that holding up the nominations might be the best leverage the committee has against the EPA.
“Certainly, I can assure you that that’s what I would do and what [Sullivan] would do and what the majority would do if they don’t respond,” he said. “You have to respond to questions.”
Senators can place holds on nominees and prevent confirmation votes on them. Republicans have long criticized the EPA for its rule-making, and Sullivan said they are looking for more information on the legality of the water rule the EPA issued in May.
EPA spokeswoman Liz Purchia said the agency’s legal justification for that rule is built into the final version of it.
“For over a decade, EPA and the Army Corps of Engineers received requests for a rule-making to provide clarity on protections under the Clean Water Act from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists and the public,” she said in a statement.
“In developing the rule, the agencies held hundreds of meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides.”
The three nominees, all up for assistant administrator positions within the agency, faced otherwise easy questioning from the committee. Republican members said they had concerns about issues such as open records rules, conflicts of interest and a social media campaign about the water regulations, but questioning on those matters wasn’t overly contentious.
All three nominees have been up for confirmation before. Sen. Barbara Boxer (D-Calif.), the committee's ranking member, said the panel approved them all on unanimous voice votes last year, though the full Senate never considered them.
“We all attack agencies and kind of amorphous organizations,” she said to Inhofe. “But here are three people … they’re at a point where they really want to give back. So I’m hopeful, you’re a good man, and hope you’ll help me get these people to the floor and get them confirmed.”
Sullivan, a freshman senator, said after the hearing that he was “seriously contemplating” holding the nominees, regardless of their qualifications.
“I was not bluffing, I take this very seriously,” he said. “It’s a rogue agency. They had nothing to do with it, but the administrator certainly blows off this [committee] and this Congress.”
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Republicans Grill 3 Long-Stalled Obama EPA Picks
Jun 11, 2015 | E&E - Greenwire
By Amanda Peterka
Three long-stalled Obama administration nominees for posts at U.S. EPA today faced tough questions from GOP senators about the agency's policies and its authority as a whole.
On the witness stand at the Senate Environment and Public Works Committee: Ann Dunkin to be assistant administrator of the Office of Environmental Information, Thomas Burke to be assistant administrator of the Office of Research and Development, and Jane Nishida to be assistant administrator of the Office of International and Tribal Affairs.
It was the first EPA nominations hearing this Congress. The administration first put all three nominees forward at least a year ago. They are currently working at EPA in various positions as they await confirmation.
"This committee intends to be fair and thorough in reviewing EPA nominees," said Chairman James Inhofe (R-Okla.). "The president has a right to nominate people who support his agenda, but the Senate has a right and responsibility to review his nominees to make sure they are qualified and responsible professionals."
There are two other pending EPA nominations: Stan Meiburg to be deputy administrator and Karl Brooks to be assistant administrator for the Office of Administration and Resources Management. According to Inhofe, EPA has not yet submitted complete paperwork for the other two nominees.
At today's hearing, Republican committee members spent the most time questioning Burke, who is currently EPA's science adviser and deputy assistant in the Office of Research and Development, about the activities of EPA's science panel. The approximately 50-member Science Advisory Board provides scientific guidance to the agency that is then used to help shape environmental regulations.
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Burke, who served on the SAB two separate times as an academic, defended the panel, which has been under fire by GOP lawmakers in both the House and Senate over accusations of bias. Bills introduced in both chambers this Congress -- the House has cleared its version -- would inject a quota for local officials to serve and change the board's conflict-of-interest requirements.
"It's important that the SAB be credible, be inclusive and really represent the best expertise we have in this nation," Burke said, adding that he was "supportive" of the board as it was.
"I think the most important message is there be clear, consistent science for the agency," he said.
Dunkin, who is currently serving as EPA's chief information officer, fielded several questions from Inhofe about the agency's management of environmental grants. Inhofe also pressed her about EPA's Freedom of Information Act processes, arguing that EPA "continues to demonstrate a lack of respect" for FOIA and citing a March court decision that found fault with the agency's processes.
Nishida faced relatively few questions aside from a line of inquiry by Inhofe on the percentage of environmental grants that are given to foreign versus U.S. entities. All three nominees agreed to follow up with more detailed responses before their nominations move forward.
EPW ranking member Barbara Boxer (D-Calif.) cheered the hearing and all three nominees, urging that their nominations be taken up by the full Senate as quickly as possible.
"If we can't get you people moving to the floor, I don't know who would be better," she said.
The GOP's broader distrust for EPA showed through at the hearing. As it wrapped up, Sen. Dan Sullivan (R-Alaska) demanded that the nominees account for EPA Administrator Gina McCarthy's "stonewalling" Congress on regulatory issues related to air, water and climate change.
Sullivan suggested that the Senate should not confirm the nominees until McCarthy has responded to several congressional inquiries about its legal authority.
"I've been asking the administrator for months -- months -- for a detailed legal analysis that provides EPA the legal authority to issue a Waters of the U.S. rule, and she won't provide it to this Congress," he said. "So now EPA wants the Congress to confirm you. But my question is, shouldn't we say, 'Now wait a minute, you're not getting back to us on anything'?"
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Oil Groups Defend Effort to Temporarily Block Fracking Rules
Jun 11, 2015 | Reuters
By Ayesha Rascoe
Two oil and gas groups have defended their push to block the new U.S. rules for hydraulic fracturing on public lands pending the outcome of their legal challenge, slamming the government's argument that drillers can avoid the regulations if they choose.
The Independent Petroleum Association of America (IPAA) and the Western Energy Alliance, represented by Baker & Hostetler, filed a lawsuit challenging the Interior Department's regulations in March.
To read the full story on WestlawNext Practitioner Insights, click here: bit.ly/1Gv4KUA
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Group Uses Prop 65 Against Fracking Firm Over Discharges
Jun 11, 2015 | E&E - Greenwire
By Sam Pearson
A California advocacy group is using a new application of the state's chemical warning label law to go after a hydraulic fracturing operator's chemical discharges.
The Center for Environmental Health said today it has taken legal action under the state's Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65, against Seneca Resources Corp. over what it says is the firm's disposal of hydraulic fracturing wastewater containing chemicals known to cause cancer or reproductive harm. The group issued a notice of violation to Seneca Resources, the first step ahead of a possible lawsuit.
CEH said in the filing it would sue unless Seneca Resources agreed to stop discharging three chemicals -- benzene, ethylbenzene and naphthalene -- it said were in use at four Kern County wells.
These wells "have been an integral part of California's oil and gas operations for over 50 years," Seneca Resources spokesman Rob Boulware said in a statement.
Boulware added that California regulators' oversight of injection wells "is monitored and audited by the EPA and Seneca Resources operates injection wells, including those that are the subject of the CEH notice Seneca received, that are in compliance with all current state and federal regulations. We are reviewing the notice and have no further comment at this time."
Prop 65 set up a state regulatory system to identify chemicals believed to cause cancer or reproductive problems without the kind of procedural barriers that have made it highly difficult for federal regulators to restrict chemicals in use prior to the adoption of the Toxic Substances Control Act of 1976. As a result, California regulators have listed significantly more chemicals as known to cause health problems than other agencies have.
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When these chemicals are used in consumer products above specified levels, manufacturers are required to post warning labels that the product contains chemicals known to the state to cause cancer or reproductive harm. Companies are also not permitted to discharge these chemicals into potential sources of state drinking water. Companies can be sued by private parties to enforce the provisions of Prop 65.
"Toxic wastewater from fracking must not be allowed to contaminate our precious drinking water supplies," CEH Executive Director Michael Green said in a statement.
California officials have increasingly scrutinized the operations of hydraulic fracturing firms in recent months, especially their wastewater injection procedures. The increased concern came about after the state Department of Conservation disclosed earlier this year that it had erroneously approved the injection of wastewater into federally protected aquifers for decades because it had misclassified nearly a dozen aquifers in Kern County, a major oil production center.
CEH said state records show Seneca, a subsidiary of the National Fuels Gas Co., used chemicals supplied by Halliburton Co. at its injection wells at a Kern County disposal site. The discharges included injections containing benzene at more than 2,000 times state standards, naphthalene as high as 181 times the state standard and ethylbenzene at as much as 20 times the state standard, according to the group.
The state found that it had allowed wastewater injection at the sites in violation of the Safe Drinking Water Act. But regulators did not take action to immediately stop drillers from injecting fluids into the aquifers, instead setting a series of deadlines for companies to apply for exemptions from federal rules.
The state now faces a lawsuit from Earthjustice, the Sierra Club and the Center for Biological Diversity seeking to invalidate those regulations (Greenwire, May 7).
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Final Rule 'Even Worse' Than Original Proposal -- Farm Bureau
Jun 11, 2015 | E&E - Greenwire
By Annie Snider
The final version of the Obama administration's controversial water rule is worse for farmers and ranchers than what was originally proposed last spring, the American Farm Bureau Federation argued today.
The group, which has been the most influential in opposing the Waters of the U.S. rule, laid out its concerns on a call with reporters this morning and pressed for Congress to intervene to kill the rule.
"Our analysis shows yet again how unwise, extreme and unlawful this rule is," said Bob Stallman, president of the federation. "Our public affairs specialists and legal team have assembled the best analysis available anywhere, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. proposal is even worse than before."
As Congress debates whether to block the water rule, its impact on farmers and ranchers has become a key issue. U.S. EPA and the Army Corps of Engineers say it would change little on the ground for agriculture, since it retains long-standing exemptions for many common activities. EPA Administrator Gina McCarthy has made a major overture to try to reassure farm groups on the rule.
But a number of agricultural groups, led by the Farm Bureau, contend it would broadly extend federal power and force farmers and ranchers to get permits for a number of everyday activities like pesticide and fertilizer application.
Worst, Stallman argued, is the rule's definition of "tributary," which covers features that flow only after rain events and some man-made constructions like ditches. Under the rule, any feature meeting that definition warrants automatic federal protection.
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While the agencies extended their exemptions for ditches under the final rule, Stallman said the onus will still be on the landowner to prove that his or her ditch qualifies for one.
"The bottom line is that no farmer can look at the ditches that run alongside or within his farm fields and know whether those ditches are waters of the U.S. or not," he said. "So much for certainty."
Moreover, Stallman noted that the final version of the rule allows EPA and the Army Corps to use remote sensing tools and mapping information to determine if a feature has the characteristics that make it a tributary.
"I have no clue why individuals sitting at a desk within EPA or the corps can determine what will be a water of the U.S. on my land without ever visiting," Stallman said.
With permit applications piling up and technology advancing, federal agencies have been increasingly tapping remote sensing data to help make determinations about which streams and wetlands fall under their jurisdiction.
This is true not just of EPA and the Army Corps for Clean Water Act determinations, but also of the Agriculture Department's Natural Resources Conservation Service, which makes separate wetlands delineations under a provision of the farm bill. NRCS has long made some of these delineations off site, but under its programs, these initial delineations can be appealed.
Farm Bureau officials said they have always had concerns about this type of desktop approach but that it is particularly disconcerting with respect to the Clean Water Act.
"We're not saying that those technologies have no value for certain purposes, but we're talking about a rule that creates automatic jurisdiction on day one of its effective date over certain features, and that means automatic liability, automatic legal risk, penalties and legal obligations for doing things on and around those features on day one," said Ellen Steen, general counsel and secretary for the Farm Bureau.
"And to do that where the landowner can't see it and has no fair notice that somebody later with lidar or some of these technologies won't come along and say, 'By the way, for the last year, for the last two years, for the last five years, you've been violating the Clean Water Act, here are your penalities' -- that's not fair," she said. "It's just not right."
The final version of the rule does contain new, firm boundaries beyond which federal agencies can claim no power. Obama administration officials say this is aimed at providing clarity on the ground and responding to concerns raised by the Farm Bureau and others that a landowner can never feel safely out of reach.
But Farm Bureau officials today said those boundaries were of little use, since the broad definition of tributary would cause most waters to fall within the boundaries.Lawsuit likely
The upshot of their analysis, Stallman argued: The changes in the final rule make it all the more important for Congress to act.
"America's farmers and ranchers and other small business owners are looking to Congress to press the reset button on this rule," he said. "We all want clean water, but such a worthy goal is worth doing right."
The Senate Environment and Public Works Committee yesterday advanced S. 1140, a measure that would effectively kill the current water rule by setting new criteria that any such regulation would have to meet.
On the Senate floor, the vote stands to be a squeaker. A test vote in March suggested that the 60 votes necessary to overcome a filibuster of the bill could be within reach, but a number of key moderates have said they were waiting to see the final rule to make their final decision.
"We have a really good list of individuals in the Senate that said they would wait until the rule was final to make a final decision," Stallman said. "I think the burden is on not only agriculture but the broad regulated community to help those members understand that this rule actually is worse."
Steen also confirmed that the organization is likely to file litigation if Congress doesn't intervene first.
"I think it's safe to say that unless something happens in the very short term to block this from Congress, it's very likely that we'll be filing suit," she said.
But, she said, "that is a very slow and a very painful process, and it's certainly not a solution in the near term."
Click here for the Farm Bureau's "Fact or Fiction" fact sheet.
Click here for the Farm Bureau's fact sheet critiquing the rule.
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A Frenzy Over Birdbaths, Paddles and the Waters of the US
Jun 11, 2015 | The Hill - E2 Wire
By Former Rep. Tim Bishop (D-N.Y.)
Too often in Washington, myth becomes fact, rhetoric becomes reality, hysteria replaces reason and inconvenient truths are ignored. While policymaking can be tedious and complicated, that is no excuse for allowing such a vital process to degenerate into spin, hyperbole and scare tactics.
Today, we see this game play out over and over. I mean, who can forget "death panels" and "calves the size of cantaloupes?"
Most recently, the inside-the-Beltway spin machine is whipping up a frenzy over federal regulation of birdbaths, puddles and roadside ditches. Really? So now, in addition to death panels, we have to worry about Uncle Sam seizing control of the puddles on my lawn? Hard to believe, but this is the state of play regarding the definition of the waters of the United States subject to regulation under the Clean Water Act (CWA).
I'll explain; but first, a little history.
In 1972, Congress, with the backing of U.S. industry, decided that we needed to provide a strong, comprehensive national level of protection to our nation's waters. After overriding the veto of then-President Nixon by a 10-1 margin, a bipartisan Congress put in place the modern Clean Water Act, which by all accounts has been an overwhelming success. In 1972, no more than 30 percent of our nation's surface waters were swimmable or fishable. Now, 70 percent of our waters meet this standard. The public health and economic benefits of this turnaround are incalculable, and it has happened because a haphazard collection of state and local laws has been replaced by comprehensive national standards.
Who could object to clean water, improved public health and economic vitality? Turns out, quite a few. Today, as a result of two flawed Supreme Court decisions, and an effort by the George W. Bush administration to weaken federal protection of our waters, confusion and regulatory uncertainty abound. But don't take my word for it. Listen to the American Farm Bureau describing the current Clean Water Act regulations: "With no clear regulatory definitions to guide [the federal government's] determinations, what has emerged is a hodgepodge of ad hoc and inconsistent jurisdictional theories."
More from the Farm Bureau, joined by the National Association of Home Builders: “The Bush administration guidance is causing confusion and added delays in an already burdened and strained permit decision-making process, which ultimately will result (and is resulting) in increased delays and costs to the public at large."
In fact, the current regulatory structure is so arbitrary, confusing and frustrating that groups ranging from the National Association of Home Builders to the Farm Bureau to the National Wildlife Federation have all requested the federal government develop a new set of rules to clarify the scope of Clean Water Act protections.
In April 2014, that is exactly what the Obama administration attempted to do when it initiated its public comment period on a new federal rule to clarify the scope of CWA protections — a public comment period which, I would note, is of a scale unprecedented in the history of the CWA. In fact, the proposed rule as drafted by the Environmental Protection Agency (EPA) fits entirely within the constraints on jurisdiction of the CWA as imposed by the Supreme Court rulings, and does not subject any previously unregulated body of water to CWA protection.
You would think that if industry and the environmental community were both asking for this clarity, it should be a done deal, right? I mean, who could possibly oppose providing those regulated by the CWA with greater certainty and reduced compliance costs, and at the same time clarifying the comprehensive protection of our precious waters that our citizens have grown to expect?
But remember, in Washington, when you are faced with a tough question, reach for the rhetoric and change the subject. To wit: According to the floor statement of one Republican member: "There is something terribly wrong when the federal government is attempting to regulate our nation's puddles, streams and ditches." Not even remotely true, but who wants to speak the truth about the dangers to our rivers and lakes when a juicy sound bite is available?
Even if, in some parallel universe, this rhetoric was even plausibly true, one would think that members of Congress could pass language to avoid any possible expansion of regulation of puddles and birdbaths, and yet still provide the regulatory certainty requested both by industry and environmental organizations.
Again, apparently not in Washington, because that is exactly what Rep. Donna Edwards (D-Md.) tried to do in May, with her floor amendment to the so-called Regulatory Integrity Protection Act.
This amendment would have prevented federal agencies from including in any final CWA rule-making provisions to expand the historic scope of the CWA, including the regulation of puddles, birdbaths, ditches and groundwater, or from requiring CWA regulation of land-use activities or farming, ranching or forestry practices that have traditionally been exempt. Yet, inconceivably, every single House Republican voted against this amendment.
Why? Because it would have taken away their ability to distract and mislead with rhetoric and hyperbole. Absent this hysteria, Congress would be forced to answer the question of why it is opposed to restoring some sanity and predictability to the protection of our nation's waters.
Gone are the days when Congress demonstrated the political courage and the wisdom to face up to the environmental and economic challenges of the time. No, today in Washington, when Congress is asked to protect our precious waters, its response is "Save your birdbath!" And we wonder why the approval rating of Congress languishes in the single digits?
Bishop is a former Democratic congressman from New York and is currently Distinguished Professor of Civic Engagement and Public Service at St. Joseph's College in New York.
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Former Sen. Lincoln Talks Prospects for Energy Bill Passage
Jun 11, 2015 | E&E TV
How will this week's U.S. Court of Appeals for the District of Columbia Circuit decision to reject an attempt by 15 states to block U.S. EPA from finalizing its Clean Power Plan impact the debate on the plan as a final rule is set to be released this summer? During today's OnPoint, former Sen. Blanche Lincoln (D-Ark.), principal of the Lincoln Policy Group, explains why she believes the Obama administration has overreached on several major regulations coming out of EPA. She also talks about timing issues that could derail attempts to move an energy package through Congress this year.Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is former Senator Blanche Lincoln. Senator Lincoln is founder and principal of the Lincoln Policy Group. Senator Lincoln, thank you for joining me.
Sen. Blanche Lincoln: Thanks for having me, Monica.
Monica Trauzzi: Senator, the D.C. Circuit Court this week rejected an attempt by 15 states to block EPA from finalizing its Clean Power Plan. How does this decision affect the dynamic of the discussion on the plan as we await a final rule this summer?
Sen. Blanche Lincoln: Well, I think what people locally are thinking and in states and in industry all across the country is, you know, we've -- we're moving in the right direction, the economy's starting to pick up, we're seeing those kind of things happen. The last thing in the world we need to see is our power rates go up, our energy rates go up. I think that people are also seeing -- and I hope the president is seeing that some of what he -- you know, he has started to do and wanted to accomplish and his environmental issues is beginning to work, but that taking steps that are going to make it much more difficult, one, for businesses and industries to participate in it and still be able to make a living and hire people and keep Americans working and feeding their children and all those kind of things is going to become more and more difficult if, in fact, he tries to take too many more steps forward without letting what he's done come to fruition. And I think -- you know, I think this is one of those things, without a doubt. You're talking about higher energy rates more than likely, and I just think there's a lot of opportunities out there for us to deal with the need for energy in this country in ways that are probably more beneficial to the environment.
Monica Trauzzi: So what do you -- what do you think are the good steps that he's taken so far, beyond the Clean Power Plan, that effectively address the environmental concerns that exist right now?
Sen. Blanche Lincoln: Well, one of them, I think, is the ozone. You know, we've seen a 20 percent decrease since 2000. We've got cities, communities and businesses and industries trying to comply. They're working towards compliance. And again, you've got an effort here where they want to go further, and the fact is, you know, let things work that are working. But to move forward on something like that, what is it going to do to communities that are trying to build industries and jobs that are going to put people back to work? You know, I think that you've gotten a real outcry from at least almost half -- nearly half of the governors talking about economic development and the differences that we've made and what this -- what taking those next steps would mean. So, you know, I think -- I think it's just very important for the president to recognize that he's worked hard to get a good record on some of these things and he's moved forward, but the fact is there's a lot of places where, you know, you can go too far and it's -- it's going to hurt the economy and it's -- it's going to cost us.
Monica Trauzzi: But EPA does consider cost versus benefits when they put these rules together. Do you think that they've just not effectively done so in these cases?
Sen. Blanche Lincoln: Well, they do have to do cost-benefit, but not all -- not everything is taken into consideration on that. When you talk about job creation or you talk about jobs, that's not necessarily in there per se on a line item. And I think that's what people want to see, you know, talked about is that we're bringing our economy back, we've got great opportunities, we've got a unique opportunity in the amount of energy that we're producing in this country in natural gas, but -- and we're making strides, as I said, even in the ozone. But there's just complications that happen. I watched, in representing a state that's bordered by other states, you know, the fact that we had a small community that was working hard to create and attract industry, and they were getting, because of the way that the wind drifted, they were getting emissions from another state, across the river. And when I called EPA, they said, well, those monitors are there for a reason. I said, "Yeah, but they're in my state, in my community that's not producing the emissions." And all of a sudden, we're going to have to -- you know, if we were to be put on that nonattainment, it would be impossible for those small communities to be able to bring in the industries. They're not going to go there when they find a community like that that gets put on a nonattainment.
Monica Trauzzi: Back to this week's decision on the power plan. Senator Inhofe, following the decision, said it's a short-lived technical obstacle in overturning the president's economically disastrous Clean Power Plan. We've heard about attempts in Congress to either stop EPA or halt the rule in some way. Do you think that those will work? Do you think the votes are there? Do you think the momentum exists in Congress to stop EPA?
Sen. Blanche Lincoln: Well, what I don't think will happen is I don't think we will reach the goals that we want to reach in terms of clean air goals and -- and reducing carbon emissions in this country until we look at all of the possible opportunities. Now, I sat on the Energy Committee. I worked extensively with Senator Domenici in a bipartisan way on nuclear energy. In a state like Arkansas, we have hydropower. None of those get credit in terms of producing a non-carbon-emitting power source, not to mention the fact it's non-carbon-emitting, but it is full time, 24-7. It's a baseload that is reliable. They don't get credit for their reliability. So I think that the picture of what people want, people also have to be realistic about making sure that everybody's at the table in order to be able to reach that picture.
Monica Trauzzi: EPA's inspector general recently reported to Congress a series of incidents of misconduct at the agency among employees. What impact do you think that has on the agency's work as they're rolling out these major rules and on overall morale at the agency?
Sen. Blanche Lincoln: Well, I think it's a distraction. There's no doubt it's a distraction. I mean, if -- if your team is being, you know, looked upon and -- and reprimanded in some ways for things that may be happening, you know, I think it is a distraction. And again, you know, something like the ozone, where even the president said in 2011 that, you know, maybe this is something too costly for right now. At least he put it on hold. Well, it's still going to cost $15 billion to the economy to take that next step. Why not put something like that off when we know that we've seen a 20 percent reduction since 2000? And, you know, when you look at the clean water, the Clean Water Acts or the Waters of the U.S., you know, everybody wants clean water and they want clean air, but when you get into the detail and the lack of predictability of where these different units from different governing agencies come into all the different places in the United States, and all of a sudden, you've got a -- you've got a ditch or a gully and it empties into a -- you know, a city place, that empties into a bayou, that empties into a creek, that empties into another creek and then goes into -- and all of a sudden, your little gully is determined by whichever agency's looking at it, Waters of the U.S. And those are tough. Those are tough. ____ agency that's distracted doesn't need to be trying to push something that hasn't been completely vetted.
Monica Trauzzi: A final question for you. As you said, you served on the Energy Committee while in the Senate. There seems to be growing momentum on the idea of moving an energy bill this year. Do you think the right players are in place this time around to push it toward -- to the finish line?
Sen. Blanche Lincoln: It's tough. We tried to do -- and we got a bipartisan energy bill out of the Senate Energy Committee. Was that 2007? I believe it was. And we worked hard to do that. I think the refocus on regular order, which Mitch McConnell's put into place, I think it's a great thing. I told Mitch the other day, I said, "I'm proud of you for going there because committees are where you need to do the work, it's where you need to get the research done and the facts out there and the conversations happening, the consensus built on what can be a consensus and then figure out what the tough items are going to be. So I would like to think -- I don't know, it's going to be tough because they're going to have to get it pretty quickly. I have tremendous respect for Lisa and Maria, both great women who are very focused on doing good things and working with their colleagues on both sides of the aisle, so I think there's some possibilities there, but you're going to run out of time pretty quick around this town because you know once you get past September, then all of a sudden it's a race to the end of the year, and in November starts the presidential elections and most people lose their span of attention.
Monica Trauzzi: That is Washington in a nutshell. Thank you for coming on the show. I appreciate your time.
Sen. Blanche Lincoln: Thanks, Monica. Appreciate you having me.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
[End of Audio]
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Democrats Seek GOP Support for Carbon Tax Bill, Face Questions About Jailing Skeptics
Jun 11, 2015 | E&E - Climatewire
By Evan Lehmann
Two liberal senators appealed to conservatives yesterday to support a carbon tax, opening what they hope is a rebooted debate on climate change that focuses on legislation over science.
Democratic Sens. Sheldon Whitehouse of Rhode Island and Brian Schatz of Hawaii chose to introduce an ambitious bill proposing a $45 fee on carbon dioxide at the American Enterprise Institute. The location was meant to convey an offer of partnership, they said.
"With this bill I extend an open hand ... to conservatives everywhere," Whitehouse said in a packed room. "Whether you want to pursue tax reform, support the free market for energy, or as Lindsey Graham suggested this week, simply be honest about the effects of climate change, I'm looking forward to working with you."
Whitehouse was referring to the Republican senator from South Carolina, who's the only GOP presidential candidate to express support for reducing greenhouse gas emissions. But intoning Graham's name and other conservative references to national security, lower taxes and morality didn't rouse overt support in the audience.
Instead, he and Schatz faced several grudging questions. One audience member claimed that Whitehouse supported jailing climate skeptics, which he declared himself to be. Another suggested the lawmakers had orchestrated politically motivated amendment votes on climate science to embarrass Republicans. Still another suggested that their bill would impose high costs on Americans for barely discernible decreases in future temperatures.
Even conservatives who might be allies harbored miffed feelings from the partisan fights over climate science.
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Andrew Moylan, executive director of the R Street Institute, a conservative think tank that supports revenue-neutral tax policies for carbon, asked how the senators could gain the trust of Republicans after they offered amendments meant to showcase GOP climate denial during last winter's debate on the Keystone XL pipeline.
"They've been bitten a bunch of times," Moylan said of Republican lawmakers.
Schatz, who offered an amendment last January that said humans are "significantly" driving climate change, said it's appropriate to pressure Republican lawmakers after so many have questioned the science. Five Republicans supported his amendment.
"That's why we're here [at AEI], is to begin, or at least continue, a dialogue in earnest," Schatz said. "If you establish the predicate that this is the scientific consensus, if you accept the premise that American leadership is required, then let's argue about whether our carbon fee is too much or too little."An 'outrageous' think tank?
The 37-page bill, named the "American Opportunity Carbon Fee Act," would impose a $45-per-ton fee on carbon dioxide emitted from upstream sources like coal mines and oil refineries. It would rise 2 percent annually with a goal of reducing emissions 80 percent below 2005 levels. In the shorter term, the bill is projected to cut emissions by at least 40 percent by 2025, according to a summary of the legislation.
The tax would raise an estimated $2 trillion in the first decade. That would go toward cutting the corporate income tax rate from 35 percent to 29 percent, provide $500 annually to individual workers through tax credits, give $500 a year to recipients of Social Security and veterans' programs, and provide additional benefits to low-income and rural households.
The bill would not pre-empt the administration's Clean Power Plan, which calls for a 30 percent reduction in greenhouse gas emissions from power plants. Pre-emption is widely considered a requirement for Republicans.
AEI has become a favored conservative venue for debates on carbon taxes, sometimes making opponents of policies on climate change cringe in anger.
In April, Rep. John Delaney (D-Md.) visited the think tank to announce a $30-per-ton fee to a mostly supportive crowd. The location offered him a trusted conduit to Republicans, something that Delaney described as highly valuable.
"Every one Republican who steps forward on this is worth 10,000 Democrats," he said then. "And I'm underestimating that. Seriously."
A few years earlier, the policy shop was harangued by conservative media outlets for advancing carbon taxes in behind-the-scenes meetings with environmentalists, economists and other academics. To opponents, it resembled treason.
One prominent skeptic, Joe Bast, president of the Heartland Institute, said the group was practicing "pre-emptive surrender" by acknowledging that climate change is serious enough to confront with emissions policies (ClimateWire, Feb. 23, 2012).
Now the think tank is facing fresh attacks. It's not just promoting climate policies, it's allowing Democrats to introduce theirs in the hope of gaining conservative support, said Myron Ebell of the Competitive Enterprise Institute. He thinks the amount of global warming is too small to be concerned about.
"It's outrageous what AEI is doing," Ebell said of Whitehouse's visit. "They are promoting a left-wing senator who's kind of a hatemonger."Defending competing ideas 'to the death'
Other Republicans don't see climate change through a political lens.
Rep. Carlos Curbelo, a freshman Republican from South Florida, says it's important for his party to acknowledge that people are contributing to sea-level rise and other effects of climbing temperatures. He tiptoes around the type of legislation that's needed to confront those impacts. But he wants it to lower emissions, whatever it is.
"I'm looking at everything. I'm not yet committed to a specific strategy. I think some of the proposals out there would be too damaging to the economy. I think there's a balance," Curbelo said last week. "I think probably market-based approaches would work the best."
Kevin Hassett, an economist at AEI who moderated a debate on carbon taxes during yesterday's event, defended the group's invitation to Whitehouse and Schatz. He said the organization strives to be a place of competing ideas.
"That's the atmosphere we want to produce here and defend to the death," Hassett said.
The debate following the senators' announcement saw two conservatives clash, collegially. Jerry Taylor, president of the Niskanen Center, argued that even a small risk of economically catastrophic climate change justifies an insurance policy -- in this case a carbon tax that terminates the Clean Power Plan.
He said ideology around climate change is preventing Republicans from applying the type of risk aversion that's widely used in economics.
"If you knew there was a 10 percent chance that we would have a major economic downturn along the lines of the Great Depression, would you continue to invest in equities? Heck, no," Taylor said. "Even though the return on equities is far greater than other investments you might make, you would very well hedge."
His sparring partner, Benjamin Zycher, a resident scholar at AEI, argued that the Obama administration uses a "deeply flawed" analysis of the social cost of carbon, upon which Whitehouse and Schatz base their carbon tax. He said a truly objective analysis would consider the potential benefits of warming on far distant events.
"A future ice age is virtually a certainty," Zycher said. "The only thing we don't know is when it will occur. And so anthropogenic warming could be a huge benefit. We don't know."
Perhaps nothing revealed the extent to which Whitehouse was in foreign territory yesterday as much as his past comments on prosecuting kingpins in the climate denial movement. Those might be applauded among friendlier audiences.
Instead he had to explain to an elderly man that he doesn't want to jail him for not believing in climate change.
Whitehouse clarified that he only supports using civil anti-racketeering law, ordinarily used in organized crime cases, against fossil fuel industry officials who commit fraud when lying about climate change.
"But no, nobody went to jail, and it's not just for being a skeptic," Whitehouse said.
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NAAQS Ruling Spurs Debate On Fate Of Bid For Giant Nonattainment Area
Jun 11, 2015 | InsideEPA
By Stuart Parker
EPA and some states are split over whether a federal appeals court ruling broadly upholding EPA's approach to designating areas as in or out of attainment with the ozone national ambient air quality standard (NAAQS) helps or hurts states' novel push to create a giant nonattainment area covering several states.
At the June 4 annual meeting of the Ozone Transport Commission (OTC) here, Delaware air chief Ali Mirzakhalili said he will cite the ruling in a renewed push for EPA to grant the request to create the massive nonattainment area. The goal of the first-time multi-state designation would be to force the affected states to work together to curb interstate transport of ozone-forming pollutants that are hindering states from attaining the ozone standard.
Mirzakhalili said the U.S. Court of Appeals for the District of Columbia Circuit's unanimous June 2 ruling inMississippi Commission On Environmental Quality v. EPA, et al., rejecting a slew of challenges to the agency's ozone NAAQS designations, suggests the agency has the authority to craft the giant nonattainment area.
Janet McCabe, acting assistant administrator in EPA's Office of Air & Radiation, countered at the OTC meeting that she was not sure the ruling could be read to allow the approach that some states are seeking.
The OTC includes 11 whole Mid-Atlantic and Northeast states, the District of Columbia and the Virginia suburbs of Washington, D.C. Its members are air regulators who work on model rules to cut ozone-forming nitrogen oxides and volatile organic compounds, and also to push EPA to tighten controls on those pollutants.
Maryland first floated the idea of giant nonattainment areas in 2009, which could help force ozone pollution cuts across several states. Connecticut and Delaware continue to support the concept, and sued EPA to try to force such an area for the agency's attainment designations for its 2008 ozone standard of 75 parts per billion. The challenge was consolidated in the Mississippi case with various other suits over the designations.
At Oct. 21 oral arguments, D.C. Circuit Judges Karen LeCraft Henderson, Merrick Garland and Sri Srinivasan questioned what areas Connecticut and Delaware consider to be "nearby," and appeared to back EPA's approach of using metropolitan statistical areas in defining the scope of attainment areas. The Clean Air Act allows EPA to include areas "nearby" to nonattainment areas if they contribute to the NAAQS attainment problems of the original area.
EPA defended its discretion to set nonattainment areas based on metropolitan areas and their surrounding counties, the method the agency has always used to set nonattainment areas for its NAAQS.
The court backed EPA's interpretation of the air law term "nearby" as reasonable and said "the designations are consistent with the EPA's reasonable interpretation of the ambiguous statutory term 'nearby.'" EPA's method is consistent with the dictionary definition of "nearby," but "neither the dictionary nor common parlance would regard Missouri as 'nearby' to Connecticut or Delaware, as the petitioners' proposals would require."
EPA's Discretion
While the court rejected the states' challenge to the 2008 ozone NAAQS designations method, Mirzakhalili suggested that the judges gave EPA significant discretion to grant a giant nonattainment area.
Mirzakhalili at the meeting asked McCabe if EPA will use the discretion described by the court to set larger nonattainment areas. McCabe in response said she was not sure she read the court's interpretation of the term "nearby" to allow EPA discretion to set a nonattainment zone extending as far as Delaware sought.
McCabe said the court's ruling "ratified for me what I have seen internally with EPA," namely that "tremendous" thought goes into the designations process for the ambient air standards.
She said that while EPA understands Delaware's motivation in asking for such an area, in making future designations EPA will "keep in mind the kind of considerations that have served us well over the years."
The court also upheld EPA's discretion to use a multi-factor analysis to determine the scope of nonattainment areas, which has withstood D.C. Circuit scrutiny before. McCabe said that NAAQS designations are all very "case-specific," and depend on the pollutant in question. The latter point matters because while ozone and its precursor chemicals can drift hundreds of miles across state lines, other pollutants such as sulfur dioxide are understood to have primarily local direct air quality effects, at least for NAAQS attainment purposes.
Speaking to Inside EPA at the event, Mirzakhalili said the D.C. Circuit's decision was "not a horrible ruling. We did not make bad law." Rather, the court upheld EPA's discretion to define nonattainment areas, he said.
The court agreed with EPA that the agency has other mechanisms available under the Clean Air Act to mitigate pollutant transport. "So I am going to tell them, do something about it," Mirzakhalili said.
EPA is currently re-working its Cross-State Air Pollution Rule (CSAPR), which is designed to help states meet the 1997 ozone NAAQS of 84 parts per billion (ppb). The revised rule will be designed to help states meet the tougher 2008 ozone NAAQS of 75 ppb, though EPA has proposed to again tighten the standard later this year.
States may independently craft "good neighbor" air quality plans to meet the air law's requirement to curb interstate pollution, but EPA is nonetheless crafting a "backstop" rule, due for proposal in the fall, based on CSAPR emissions cap-and-trade principles upheld by the Supreme Court last year in case they do not.
CSAPR Framework
McCabe at the OTC meeting said EPA is "very pleased that the Supreme Court effectively upheld the CSAPR framework and approach," adding, "we think it is wise to take as much advantage of that as we can." The high court upheld the overall approach to the rule, though litigation over some more specific aspects of CSAPR continues on remand at the D.C. Circuit in EME Homer City Generation v. EPA.
Also, McCabe at the OTC meeting noted that some member states of the organization still have a petition outstanding to expand the OTC area under air law section 176, which allows states to petition the agency to enlarge the area, within which tougher pollution control requirements apply than elsewhere.
Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island and Vermont signed the petition, submitted to EPA in December 2013, asking EPA to expand the OTC region by nine states: Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia and the remaining part of Virginia.
However, EPA has not yet replied to the petition and McCabe gave no indication of when the agency may do so. The statutory deadline for EPA to respond passed in May this year. A state source says EPA is still doing the technical evaluation required for the agency's reply to the petition.
An EPA spokeswoman says that the agency "is continuing to work on the petition response. More broadly, EPA is actively engaged with states to address interstate transport for the 2008 8-hour Ozone NAAQS. This effort includes the development of a Federal Implementation Plan (FIP) for ozone transport to be proposed later this year, as well as modeling to inform this effort. While the modeling is not yet complete, it will assist in informing EPA's petition response."
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