EPA Releases Draft Climate Change Adaptation Plan For Comment

Feb 8: U.S. released its Draft Climate Change Adaptation Plan (dated June 29, 2012) for public comment. The official notice was published in the Federal Register today (February 8, 2013) [78 FR 9387-9388]. The plan, is now open for comments through April 9, 2013. Other departments and agencies also released their 2012 Strategic Sustainability Performance Plans which for the first time ever also include Climate Change Adaptation Plans [See separate article below].

 

    The plan examines the ways EPA programs are vulnerable to a changing climate and how the Agency can adapt to continue meeting its mission of protecting human health and the environment. Every program and regional office within EPA is currently developing an Implementation Plan outlining how each considers the impacts of climate change in its mission, operations, and programs, and carrying out the work called for in the agency-wide plan. The Plan indicates in part:

"We live in a world in which the climate is changing. Changes in climate have occurred since the formation of the planet. But humans are now influencing Earth's climate and causing it to change in unprecedented ways.

"It is in this rapidly changing world that EPA is working to fulfill its mission to protect human health and the environment. Many of the outcomes EPA is working to attain (e.g., clean air, safe drinking water) are sensitive to changes in weather and climate. Until now, EPA has been able to assume that climate is relatively stable and future climate will mirror past climate. However, with climate changing more rapidly than society has experienced in the past, the past is no longer a good predictor of the future. Climate change is posing new challenges to EPA's ability to fulfill its mission.

"It is essential that EPA adapt to anticipate and plan for future changes in climate. It must integrate, or mainstream, considerations of climate change into its programs, policies, rules and operations to ensure they are effective under future climatic conditions. Through climate adaptation planning, EPA will continue to protect human health and the environment, but in a way that accounts for the effects of climate change.

"EPA has not yet conducted a detailed quantitative assessment of the vulnerability of its mission to climate change. This Climate Change Adaptation Plan uses expert judgment, combined with information from peer-reviewed scientific literature on the impacts of climate change, to identify potential vulnerabilities. It then presents priority actions the Agency will take to begin integrating climate adaptation planning into its activities.

"EPA's focus on climate adaptation is part of a larger federal effort to increase the nation's adaptive capacity and promote a healthy and prosperous nation that is resilient to a changing climate . A central element of EPA's efforts to adapt to a changing climate will be to strengthen the adaptive capacity of its own staff and its partners across the country. It will increase staff's awareness of ways that climate change may affect their ability to implement effective programs. It will empower staff to integrate climate adaptation into the work they do by providing them with the necessary data, information and tools. . .

"The strategic performance measures contained in the FY 2011-2015 Strategic Plan commit the Agency to integrating adaptation planning into five major rulemaking processes and five major financial assistance mechanisms by 2015, using existing authorities. They also call for the integration of adaptation planning into five major scientific models or decision-support tools used in implementing Agency environmental management programs. These Strategic Plan commitments represent the Agency's best and most informed judgment about the most effective mechanisms for building adaptive capacity and promoting adaptive planning within EPA and by its partners. They also provide a set of measures for monitoring the Agency's progress on adaptation planning. . .

"The federal government has an important and unique role in climate change adaptation, but is only one part of a broader effort that must include public and private partners throughout the country and internationally. Partnerships with states, tribes, local communities, other governments and international organizations, many of which have already begun to implement adaptation measures, are essential.

   EPA indicates for example that data, information, and/or research needs which present potential vulnerabilities include:

• Characterization of local impacts to precipitation and hydrology for use in planning long-lived water infrastructure.
• Monitoring shifts in water quality and aquatic ecosystems in watersheds, and methods for incorporating such changes into water quality programs.
• The potential impact of more intense weather events on EPA's disaster response planning efforts.
• The site-specific impacts of climate change on Brownfields, Corrective Action Facilities under the Resource Conservation and Recovery Act (RCRA), Superfund sites, RCRA Treatment, Storage and Disposal (TSD) facilities, non-hazardous solid waste facilities, and Leaking Underground Storage Tanks.
• The effect of climate change on energy efficiency programs given changes in energy demand and supply.
• The interactions between climate and the stratospheric ozone layer.
• The effects of climate change on multi-pollutant interactions in ecosystems.
• A characterization of climate-related trends in chemical use (e.g., changing patterns of pesticide use and new chemical exposures to people and the environment), and implications for the review process for new chemicals or the registration process for new pesticides.

    Access the FR announcement (click here). Access the complete 55-page Plan which includes links to many referenced items (click here). Access the EPA docket for this action to submit and review comments (click here). Access EPA's

Federal and EPA Climate Change Adaptation Programs website for more information including Adaptation Programs for other agencies (click here). [#Climate]

 

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EPA To Release "Draft EPA Climate Change Adaptation Plan"

Feb 7: Tomorrow, February 8, U.S. EPA will issue a Federal Register announcement indicating a Notice of Availability for Public Review and Comment: Draft EPA Climate Change Adaptation Plan. According to a prepublication of the announcement:

"Scientific evidence demonstrates that the climate is changing at an increasingly rapid rate, outside the range to which society has adapted in the past. Climate change can pose significant challenges to the EPA's ability to fulfill its mission. The U.S. Environmental Protection Agency is committed to identifying and responding to the challenges that a changing

climate poses to human health and the environment. It is essential; therefore, that the EPA adapt to climate change in order to continue fulfilling its statutory, regulatory and programmatic requirements, chief among these protection of human health and the environment. Adaptation will involve anticipating and planning for changes in climate and incorporating considerations of climate change into many of the Agency's programs, policies, rules and operations to ensure they are effective under changing climatic conditions. Adaptation also necessitates close coordination between EPA and its many partners and stakeholders.

 

"EPA and other Federal Agencies and Departments have developed draft Agency Climate Change Adaptation Plans in response to the President's October 2009 Executive Order (E.O. 13514 - 'Federal Leadership in Environmental, Energy, and Economic Performance') and the March, 2011 Implementing Instructions to all Federal Department and Agencies. Today, EPA announces the availability of a public review draft of its Agency Plan. The draft Plan will be available for a 60-day public review. . .

 

"EPA is working to fulfill its mission to protect human health and the environment. Many of the goals EPA is working to attain (e.g., clean air, safe drinking water) are sensitive to changes in weather and climate. Until now, EPA has been able to assume that climate is relatively stable and future climate would mirror past climate. However, with climate changing at an increasingly rapid rate and outside the range to which society has adapted in the past, climate change is posing new challenges to EPA's ability to fulfill its mission.

 

"This Plan will help guide the Agency to prepare for future changes in climate and to incorporate considerations of climate change into its mission-driven activities. Climate adaptation planning will help EPA continue to fulfill its mission of protecting human health and the environment even as the climate changes.

 

"EPA considers public input to be essential for the development of this Plan. This input will also help the Agency strengthen its partnerships with states, tribes, local communities, and nongovernmental organizations – many of which have already begun to develop and implement adaptation measures."

    As referenced in part above, in 2009, the Obama Administration convened the Interagency Climate Change Adaptation Task Force, co-chaired by the Council on Environmental Quality (CEQ), the Office of Science and Technology Policy (OSTP), and the National Oceanic and Atmospheric Administration (NOAA), and including representatives from more than 20 Federal agencies. On October 5, 2009, President Obama signed an Executive Order directing the Task Force to develop a report with recommendations for how the Federal Government can strengthen policies and programs to better prepare the Nation to adapt to the impacts of climate change.

 

    On October 28, 2011 the Task Force released the 2011 Interagency Climate Change Adaptation Task Force Progress Report outlining the Federal Government's progress in expanding and strengthening the Nation's capacity to better understand, prepare for, and respond to extreme events and other climate change impacts. The report provides an update on actions in key areas of Federal adaptation, including: building resilience in local communities, safeguarding critical natural resources such as freshwater, and providing accessible climate information and tools to help decision-makers manage climate risks (the report is available from the link below).

 

    Access the prepublication copy of the announcement (click here). Access the Council on Environmental Quality (CEQ), Interagency Climate Change Adaptation Task Force for related information (click here). [#Climate]

 

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60 Groups Urge Bold Climate Change Action From Secy. Kerry

Feb 6: Sixty leading environmental, conservation, development, faith-based, and social justice organizations are congratulating Secretary of State John Kerry for his commitment to fight climate change and urging him to "spur bold and immediate action" to reduce its worsening impacts on American families and communities. The groups sent a letter to Kerry, the former senator newly confirmed as Secretary of State, calling on him to push for strong action against climate change and to take three specific steps: to help secure a global agreement to deal with the climate crisis; to reject any new or expanded infrastructure for tar sands oil, starting with the Keystone XL pipeline [See WIMS 1/24/13]; and to secure funding for international climate action, particularly in developing countries and the most vulnerable communities.

    Natural Resources Defense Council (NRDC) International Program Director Susan Casey-Lefkowitz said, "American leadership is essential to heading off deeper climate disruption. Secretary Kerry has an opportunity to supercharge his already strong climate record by rejecting dirty fuels, starting with the Keystone XL tar sands pipeline, which would dramatically boost carbon pollution and worsen our climate."

    In a release, the groups point out that the State department will soon release an environmental review of the controversial Keystone XL tar sands pipeline. An earlier review assumed that even if Keystone XL were not built, other pipelines would enable tar sands expansion to occur. However, "mounting evidence now shows that the tar sands industry's plan to triple production by 2030 will not be possible without the Keystone XL tar sands pipeline."  Bill McKibben, founder of 350.org said, "It must be a relief for John Kerry to leave the talk shop of the US Senate and take a post where his convictions will translate directly into policy. Hard to imagine that one of his first stands won't be to nix the Keystone pipeline, a 1,700-mile fuse to one of the planet's largest carbon bombs."

    On February 17, President's Day, more than 20,000 Americans will gather in Washington, DC, for a "Forward on Climate" rally, calling for the Obama Administration to take strong action on climate change, leading with rejecting the Keystone XL tar sands pipeline and reducing carbon pollution from the nation's power plants—the largest source of carbon pollution today.

    The release indicates that EPA has estimated that the tar sands pipeline will boost annual U.S. carbon pollution emissions by up to 27.6 million metric tons -- the impact of adding nearly 6 million cars on the road. The groups cite new research by Oil Change International (OCI) shows that the government's estimates of the carbon emissions associated with Keystone XL underestimates the full impact of tar sands because a barrel of tar sands produces significantly more petroleum coke than conventional crude, which is more carbon-intensive than coal [See WIMS 1/17/13]. It's also being sold today as a cheaper substitute to it both in the U.S. and internationally. OCI's research shows that Keystone XL will produce enough petcoke to fuel 5 U.S. coal plants. The emissions from this petcoke have not yet been included in climate-impact analysis of the pipeline or the tar sands industry and OCI shows that it will raise total emissions by at least 13 percent.

    Access a release from the organizations with a link to the EPA estimate (click here). Access the letter from the groups (click here). Access the Oil Change International report (click here). [#Energy/KXL, #Climate] 

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New Greenhouse Gas Data By Sector, Type & Location

Feb 5: U.S. EPA posted the second year of greenhouse gas (GHGs) emissions data on its website, which provides public access to emissions data by sector, by greenhouse gas, and by geographic region such as county or state. EPA indicates that greenhouse gases are the primary driver of climate change, which can lead to hotter, longer heat waves that threaten the health of the sick, poor or elderly; increases in ground-level ozone pollution linked to asthma and other respiratory illnesses; as well as other threats to the health and welfare of Americans.

    Gina McCarthy, assistant administrator for EPA's Office of Air and Radiation [who some are saying may be the next EPA Administrator] said, "Transparency ensures a better informed public, which leads to a better protected environment. With this second data release, communities, businesses and others can track and compare facilities' greenhouse gas emissions and identify opportunities to cut pollution, minimize wasted energy, and save money."

 

    The 2011 data, collected through the congressionally mandated Greenhouse Gas (GHG) Reporting Program, includes information from facilities in 41 source categories that emit large quantities of greenhouse gasses. The 2011 data also contains new data collected from 12 additional source categories, including petroleum and natural gas systems and coal mines. The facilities reported direct emissions of carbon dioxide, methane, nitrous oxide, and fluorinated gases -- for a total of 3.3 billion tons.

 

For facilities that are direct emitters of GHGs the data show that in 2011:

• Power plants remain the largest stationary source of GHG emissions, with 2,221 million metric tons carbon dioxide equivalent (mmtCO2e) -- about 67% of 2011 reported emissions. 2011 emissions from this source were approximately 4.6 percent below 2010 emissions, reflecting an ongoing increase in power generation from natural gas and renewable sources.
• Petroleum and natural gas systems were the second largest sector, with emissions of 225 mmtCO2e in 2011, the first year of reporting for this group.
• Refineries were the third-largest emitting source, with 182 mmtCO2e, a half of a percent increase over 2010.

    EPA now has two years of greenhouse gas data for 29 source categories. Some industrial sectors, such as metals production and chemicals production, reported overall increases in emissions, while others, such as power plants, reported decreases. Overall emissions reported from these 29 sources were 3 percent lower in 2011 than in 2010. In the future the data collected through the program will provide the public with the opportunity to compare emissions and developing trends for all 41 industry types -- by facility and sector.

    The data is accessible through the Facility Level Information on Green House gases Tool (FLIGHT) -- a web-based data publication tool. EPA has also expanded accessibility of this data through EPA's online database EnviroFacts that allows a user to search for information by zip code.

    The data collection program is required by Congress in the FY2008 Consolidated Appropriations Act, which requires facilities to report data from large emission sources across a range of industry sectors, as well as suppliers of certain greenhouse gases, and products that would emit GHGs if released or combusted. EPA's GHG Reporting Program includes information from more than 8,000 sources and represents 85-90 percent of total U.S. GHG emissions. The data only includes large facilities and does not include small sources, agriculture, or land use, which can also be significant sources of greenhouse gas emissions.

 

    Access a release from EPA (click here). Access the GHG Reporting Program Data and Data Publication Tool (click here). Access the EnviroFacts website (click here). [#Climate, #MIClimate]

 

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Senator Murkowski Releases Energy Vision 20/20 Blueprint

Feb 4: U.S. Senator Lisa Murkowski (R-AK), Ranking Member on the Energy & Natural Resources (ENR) released her energy blueprint – Energy 20/20: A Vision for American's Energy Future. In a speech before the National Association of Regulatory Utility Commissioners (NARUC), Sen. Murkowski said, "I believe there must be a new conversation -- a better conversation -- and I intend to start it today. New technologies are emerging, changing the facts as so many thought they knew them, and our nation's energy discourse is not keeping up. It is time, despite some vastly different perspectives, to come together to address crucial and difficult issues." She continued saying:

"I'd ask you to think about some of the trends we're already seeing. For decades, our energy policies have been crafted on the premise of increasing scarcity, yet today we have increasing supply. Instead of absence, we find ourselves on the verge of abundance. There may never have been a time when we have had more potential for energy production – or for energy productivity. We can bring more energy to market, and we can also use that energy more wisely than ever before. . .

On paper and in words, most of us agree that an 'all of the above' energy policy is the best path. Yet our discussions of such a policy are anything but consistent. And in the absence of a proper balance between energy production and environmental regulation, our nation is too often hamstrung by burdensome regulations, delayed permits, and overzealous litigation.

"Energy 20/20 presents my vision for how we can move forward -- and we are officially releasing it today. . . The report features about 200 policy recommendations under seven headings: producing more; consuming less; clean energy technology; energy delivery infrastructure; effective government; environmental responsibility; and, 'an energy policy that pays for itself.' Call it a conversation starter. . .

"At the start of our report, we declare five principles: it is in our national interest to make energy abundant, affordable, clean, diverse, and secure. . . Within our report, we've set a number of important goals, generally centered around the year 2020. We can be fully energy independent from OPEC. We can diversify the use of coal and accelerate the commercialization of today's unconventional and alternative fuels. We can ensure renewable energy becomes more competitive and re-establish our supply chain for critical minerals. We can modernize our electricity infrastructure and protect ourselves from cyber threats. We can ensure that research, not endless regulation, is the force behind technological innovation. We can reform our environmental laws in a sensible manner that prevents their misuse and allows projects to proceed – while still maintaining some of the highest environmental standards in the world. . .

"And perhaps the best part, to me, is that none of this will require burdensome mandates or heavy-handed regulations. None of this need rely on tax hikes or limitations on consumer choice. We can take a long look at existing policies -- reform them -- and wind up in a far better place in a relatively short period of time. . ."

    A fact sheet provided by Senator Murkowski indicates the following "Representative Policy Ideas From Energy 20/20":

• Increase domestic oil and natural gas production and partner with Canada and Mexico to ensure their oil exports are brought to our country. This should begin immediately with the approval of the Keystone XL Pipeline project.
• Reform permitting processes and review decisions for energy, natural resources, and infrastructure projects to reduce uncertainty, delay, and excessive litigation, while still meeting environmental standards; fast track projects of national importance; and defer to state agencies when possible.
• Redefine clean energy as "less intensive in global lifecycle impacts on human health and the environment than its likeliest alternative." Implement this definition across all programs and policies.
• Use the increased revenues that result from measures advocated in Energy 20/20 to create an Advanced Energy Trust Fund for clean energy research and to pay down the national debt.
• Define hydropower as a renewable resource across all federal programs and initiatives.
• Eliminate dependency on traditional government subsidies, supporting instead clean energy finance mechanisms that are technology-neutral, cost-effective, and conducive to private investment.
• Upgrade energy delivery infrastructure, including pipelines and transmission lines.
• Develop more of our offshore resources and provide revenue sharing for coastal producing states.
• Open the coastal plain of ANWR, as authorized by law, to oil and gas development and ensure the federal government promotes the maximum responsible production in the National Petroleum Reserve-Alaska.
• Address climate change by funding basic research, lowering the cost of financing for especially promising technologies, providing prudent and temporary subsidies that are fully offset, and reducing regulatory burdens for deployment.
• Diversify coal use, facilitate exports, and reform regulations that inhibit improvements in the environmental performance of power plants.
• Encourage and accelerate efforts to make oil shale and methane hydrates commercially viable.
• Make solar and wind power more cost-effective by increasing R&D of energy storage technologies.
• Expand nuclear power and support for new technologies, including Small Modular Reactors, and resolve the pressing back-end issues of the fuel cycle.
• Promote a comprehensive energy efficiency approach by making financing accessible for efficiency retrofits, both in the federal space and private markets, and pursuing integrated efficiency systems, without creating any mandates, all while pursuing efficiency per unit of GDP rather than less energy production.
• Reform the Vehicle Technologies Program to focus on a technology-neutral suite of pre-commercial research, and eliminate the Advanced Technology Vehicles Manufacturing program.
• Reform the Renewable Fuels Standard and the Department of Energy's Loan Guarantee Program.
• Focus federal research and development on basic and applied research with demonstrations of advanced technologies, and continue to fund ARPA-E.

    On the specific subject of climate change, Sen. Murkowski indicates in part in her report, "Predictions rely on computer models, which depend on the accuracy of the data on which they are built and the assumptions of the models. The variables of climate change are far more complex than those used in models predicting commodity prices, natural disasters, or housing market risks, and computer models have been dramatically wrong on all of these and other issues. This does not mean that models are not extraordinarily valuable tools, but rather that it is reasonable to view predictions of complex matters, such as how climate

change will impact our world, with caution. . .

 

    "Because climate change is a global concern, however, if we pursue burdensome and costly legal and regulatory responses that are unlikely to be matched by other countries, we put ourselves at a competitive disadvantage without making a meaningful impact on global greenhouse gas emissions. We need to lead a continued and careful evaluation of all options to allow us to address climate change in ways that benefit both our environment and our economy. . ."

 

    The American Chemistry Council (ACC) released the following statement saying, "Senator Murkowski's energy blueprint recognizes that domestic energy production has become the engine driving America's economy by producing thousands of new jobs and spurring billions of dollars in new manufacturing investment, including the potential for over $55 billion in new chemical industry capital investment. ACC has long-endorsed a comprehensive energy strategy that encourages and develops all of America's own energy resources, from increased production of natural gas to innovations that contribute to greater energy efficiency. Many of these approaches are captured in Senator Murkowski's energy initiative, and we hope this all-of-the-above approach to energy is prioritized in the new Congress.

    "Senator Murkowski's blueprint offers a strategic and substantial portfolio of ideas in support of its objective to develop an abundant, affordable, clean, diverse and secure energy future. The framework advocates for boosting domestic energy production, while continuing to fund scientific research on advanced energy technologies. The blueprint also supports modernizing federal energy policies to boost innovations in energy efficiency -- many of which are enabled by chemistry -- that will result in economic and environmental benefits across the country. ACC applauds Senator Murkowski for her leadership in crafting this energy blueprint that provides a framework for enhancing our nation's energy security and supporting America's manufacturing renaissance."

    Franz Matzner, associate director of government affairs for the Natural Resources Defense Council (NRDC) said, "Sen. Murkowski's energy blueprint for the future reads more like a cut-and-paste job from the fossil fuel industry's playbook of the past. It relies extensively on policies and incentives for increased oil and gas drilling, while ruling out many of the policy tools most likely to reduce carbon pollution and bring cleaner energy technologies into the marketplace. As the representative of the fastest-melting state in the union, Sen. Murkowski should not be pushing drilling in our most pristine landscapes or approving a pipeline that will result in more, not less, climate change problems. We need a plan that moves us forward to the 21st century, not one that keeps us wedded to the past." 

 

    David Moulton, senior legislative director at The Wilderness Society (TWS) said, "Senator Murkowski's energy plan is a lesson in ignoring inconvenient truths. It flat out ignores any harmful effect of global climate change. It ignores the vast swaths of unused acreage that the oil and gas industry has already leased. And it ignores the growth of clean, renewable energy. Instead of building on the path the country is on towards using precious energy more efficiently and competing for the renewable energy jobs of tomorrow, this Energy Plan is a U-turn on progress."

    Access the complete 123-page document (click here). Access her speech from the National Association of Regulatory Utility Commissioners (NARUC) (click here). Access a fact sheet (click here). Access a release from ACC (click here). Access a release from NRDC (click here). Access a release from TWS (click here). [#Energy]

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Opposing Views On EPA's Proposed Renewable Fuel Standard

Jan 31: U.S. EPA is proposing the 2013 percentage standards for four fuel categories that are part of the Agency's Renewable Fuel Standard program (RFS2). EPA said the proposal will be open for a 45-day public comment period and EPA will consider feedback from a range of stakeholders before the proposal is finalized. EPA continues to support the use of renewable fuels within the transportation sector through the RFS2 program, which encourages innovation, strengthens American energy security, and decreases greenhouse gas pollution.

    The Energy Independence and Security Act of 2007 (EISA) established the RFS2 program and the annual renewable fuel volume targets, which steadily increase to an overall level of 36 billion gallons in 2022. To achieve these volumes, EPA calculates a percentage-based standard for the following year. Based on the standard, each refiner and importer determines the minimum volume of renewable fuel that it must ensure is used in its transportation fuel.

    The proposed 2013 overall volumes and standards are: Biomass-based diesel (1.28 billion gallons; 1.12 percent); Advanced biofuels (2.75 billion gallons; 1.60 percent); Cellulosic biofuels (14 million gallons; 0.008 percent); and Total renewable fuels (16.55 billion gallons; 9.63 percent). Overall, EPA's RFS2 program encourages greater use of renewable fuels, including advanced biofuels. For 2013, the program is proposing to implement EISA's requirement to blend more than 1.35 billion gallons of renewable fuels over the amount mandated for 2012.

    The American Petroleum Institute (API) reacted immediately and criticized EPA for ignoring a recent court decision [See WIMS 1/25/13] in its 2013 proposed mandate for nonexistent cellulosic biofuel. API Downstream Group Director Bob Greco said, "The court recognized the absurdity of fining companies for failing to use a nonexistent biofuel. But EPA wants to nearly double the mandate for the fuel in 2013. This stealth tax on gasoline might be the most egregious example of bad public policy, and consumers could be left to pay the price. EPA needs a serious reality check."

    API indicated that EPA's 2013 proposed mandate will require refiners and importers of gasoline and diesel to purchase 14 million gallons of the nonexistent biofuel in 2013. Although cellulosic biofuel has never been available on the commercial market, EPA continues to increase the mandate each year and has fined companies for failing to purchase sufficient quantities. In a decision this month, U.S. Court of Appeals said that EPA is not allowed "to let its aspirations for a self-fulfilling prophecy divert it from a neutral methodology," and said EPA must set more reasonable mandates. 

    Greco said, "For four years running, biofuel producers have promised high cellulosic ethanol production. EPA uses these aspirational claims to set mandates, but the promised production hasn't happened. With today's announcement, EPA has proven yet again that its renewable fuels program is unworkable and must be scrapped." Greco said API recommends that "EPA base its prediction on the current year's cellulosic biofuel production when establishing the mandated volumes for the following year. This approach would provide a more realistic assessment of potential future production rather than simply relying on the assertions of companies whose self-interest is to advertise lofty projections of their ability to produce the cellulosic biofuel."

     Sen. David Vitter (R-LA), Ranking Republican of the Environment and Public Works (EPW) Committee issued a statement that echoed the API concerns saying, "The EPA continues to make up unicorn-like standards in this area of renewable fuels production, and clearly are ignoring last week's appellate court ruling. EPA has been getting away with mandating exaggerated fuel standards based on a pie in the sky wish, and even after last week's embarrassing loss, they persevere in ignoring the cold hard facts. Increasing the standard after their 2012 requirements were vacated is beyond ludicrous, and they continue to force refiners to either purchase even more gallons of product that doesn't exist or pay a fine."

    Brooke Coleman, executive director of the Advanced Ethanol Council (AEC) released a statement saying, "The advanced ethanol industry appreciates U.S. EPA's due diligence on getting to the right number on cellulosic biofuels. The cellulosic biofuels industry is just breaking through at commercial scale with the most innovative and cleanest liquid fuel in the world. U.S. EPA worked hard to ensure that the cellulosic biofuels volume standard for 2013 would be tied directly to the commercial production of cellulosic biofuels expected to come online this year. While weaning the United States off of its addiction to foreign oil is not easy, the volume standards proposed today will continue to provide advanced biofuel investors and innovators with a predictable and durable path forward in that effort. U.S. EPA's acknowledgement of the Brazil situation underscores the need to knock down the ethanol blend wall quickly, so that we are not protecting 90 percent of the market exclusively for fossil fuels. The RFS is one the most, if not the most forward-looking and intelligent energy programs ever enacted in the United States. We look forward to finalizing these targets as quickly as possible to provide our investors and fuel producers with the certainty they need to meet the RFS."

    Renewable Fuels Association (RFA) President and CEO Bob Dinneen released comments saying:

"The 2013 RFS requirements will be the catalyst that finally compels oil companies to get serious about breaching the so-called blend wall. This year's RFS requirements will necessitate the use of more E15, E85 and other higher-level blends. Injecting larger volumes of biofuels into the U.S. fuel supply and spurring a more rapid transition to domestically produced renewables is exactly what the RFS was intended to do. The program is working as envisioned by Congress.

"EPA again considered the best available information -- including projections from the Energy Information Administration -- to set the 2013 cellulosic biofuel requirement. The proposed standard in no way exaggerates the volumes that will be available in 2013 based on current information, and may ultimately prove to be conservative. Cellulosic ethanol is being produced today at commercial scale in Florida, and with construction nearing completion at several other commercial sites, we fully expect 2013 to be the breakthrough year for cellulosic ethanol. At the same time, the fact that EPA waived 98.6 percent of the statutory cellulosic biofuel standard demonstrates the extraordinary flexibility and adaptability of the RFS program.

"We are concerned, however, that the proposed 2013 advanced biofuel standard will open the door even wider to imports of more expensive Brazilian sugarcane ethanol. We hope the requirement can be met with domestic advanced biofuels, like waste-derived ethanol and biodiesel. However, we must be mindful that imports accounted for 92 percent of the 2012 advanced biofuel standard. In an unconstrained fuel market where E15 and other mid-level blends were broadly available, imports would not be a major concern. However, in today's constrained market, where oil companies continue to throw up roadblocks to E15 and other mid-level blends, every gallon of imported ethanol is one less gallon of domestically-produced ethanol that will be used. This occurs only because EPA allows more expensive imported Brazilian ethanol to claim the advanced biofuel RIN that is currently trading at $0.48. High-priced sugar ethanol imports began to cannibalize the U.S. market in 2012, and today's decision potentially adds fuel to the fire.

"RFA will continue to encourage EPA to revisit its lifecycle analysis, which graciously assigns advanced biofuel status to sugarcane ethanol. EPA's outdated analysis suggests sugarcane ethanol reduces greenhouse gas emissions by 52 to 71 percent relative to gasoline. However, the most recent peer-reviewed, published estimate found the range of sugarcane GHG reductions to be 40 to 62 percent, meaning nearly half of current sugarcane imports likely do not meet the 50 percent GHG reduction requirement."

    The Union of Concerned Scientists (UCS) issued a release saying that, "EPA should exercise more discretion to reduce competition between food and fuel." Jeremy Martin, senior scientist with UCS's Clean Vehicles Program, noting that markets for corn, sugar and vegetable oil are tight and thus any expansion of mandates for any food-based biofuels will put pressure on food prices and accelerate agricultural expansion and deforestation said, "This year's drought reminded us that our food supplies can be easily disrupted. Cellulosic biofuel production is behind schedule, but that doesn't mean we need to accelerate mandates that threaten our environment and our food supplies."

     UCS noted that its research suggests there is enough non-food feedstock in the United States to meet the total 36 billion gallon biofuel target under the RFS, but that doing so will take longer than previously expected due to the financial crisis and other factors. Martin said, "Cellulosic fuels still offer the best bet for replacing large amounts of oil without disrupting our food supplies. Along with vehicle efficiency and other technology, cellulosic fuels can help us to cut our projected oil use in half over the next 20 years."

    Access a release from EPA  (click here). Access more information on the standards and regulations from EPA (click here). Access more information on renewable fuels (click here). Access a release from API (click here). Access a release from Sen. Vitter (click here). Access a release from AEC (click here). Access a release from RFA (click here). Access a release from UCS with various links to related information (click here). [#Energy/RFS]

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U.S. Wind Energy Industry Completes Strongest Year Ever

Jan 30: The American Wind Energy Association (AWEA) announced that the U.S. wind energy industry had its strongest year ever in 2012, installing a record 13,124 megawatts (MW) of electric generating capacity, leveraging $25 billion in private investment,and achieving over 60,000 MW of cumulative wind capacity. The milestone of 60,000 MW (60 gigawatts) was reached just five months after AWEA announced last August that the U.S. industry had 50,000 MW installed. AWEA said, "Today's 60,007 MW is enough clean, affordable, American wind power to power the equivalent of almost 15 million homes, or the number in Colorado, Iowa, Maryland, Michigan, Nevada, and Ohio combined."

    AWEA indicated that in this historic year of achievement, wind energy for the first time became the number one source of new U.S. electric generating capacity, providing some 42 percent of all new generating capacity; the final tally will be released in April in AWEA's annual report. In fact, 2012 was a strong year for all renewables, as together they accounted for over 55 percent of all new U.S. generating capacity. Resulting from 190 projects across 32 states plus Puerto Rico, the new record for annual installations of over 13,000 MW by the U.S. industry far surpasses the previous record of 10,000 MW installed in 2010.

    AWEA Interim CEO Rob Gramlich said, "It is a real testament to American innovation and hard work that for the first time ever a renewable energy source was number one in new capacity. We are thrilled to mark this major milestone in the nation's progress toward a cleaner energy system." Currently installed wind power will avoid 95.9 million metric tons a year of carbon dioxide emissions, equal to 1.8% of the entire country's carbon emissions.

    In last year's fourth quarter alone, 8,380 MW were installed, making it the strongest quarter in U.S. wind power history. This was due in large part to impending expiration of the successful Federal Production Tax Credit (PTC). It was slated to end on December 31, 2012, but was extended by Congress on January 1, 2013, as part of the "fiscal cliff package," the American Taxpayer Relief Act of 2012.

    Gramlich added, "What is just as striking as the new records is the expansion of new customers. A total of 66 utilities bought or owned wind power in 2012, up from 42 in 2011. We are also seeing growth in new customers in the industrial and commercial sectors purchasing or owning wind energy directly." New wind power purchasers last year included at least 18 industrial buyers, 11 schools and universities, and eight towns or cities, showing a significant trend toward nontraditional power purchasers from the industrial sector. Manufacturers of everything from plastics to light bulbs, semiconductors, and badges, farms, and medical centers are now directly purchasing wind power. Gramlich said, "The fact that wind power grew by another 28 percent in 2012 alone and poured $25 billion of private investment into the U.S. last year demonstrates wind's ability to scale up, and continue to serve as a leading source of energy in America."

    AWEA indicates that the top 10 states for new capacity installations in 2012 include: 1. Texas (1,826 MW); 2. California (1,656 MW); 3. Kansas (1,440 MW); 4. Oklahoma (1,127 MW); 5. Illinois (823 MW); 6. Iowa (814 MW); 7. Oregon (640 MW); 8. Michigan (611 MW); 9. Pennsylvania (550 MW); and,10. Colorado (496 MW).

    States with exciting news in wind project development in 2012 include California, Michigan, and Illinois. The Golden State regained its position as the second largest state in installed wind capacity, surpassing Iowa, which had been number two since 2008. California achieved the 5,000-MW milestone in wind capacity, following Texas, and alongside Iowa.

    Illinois had its most successful year ever. Ranking number five in new capacity, Illinois saw the installation of over 800 MW, with half that output sold into the Tennessee Valley Authority market. As one of America's wind power hubs, Illinois is home to wind power innovation and this year, it installed the first concrete wind tower, which the manufacturer says can support taller turbines to access better winds. Iowa soon followed suit.

    While a strong renewable portfolio standard (RPS) is successfully growing wind power in California, such policies are also growing wind projects in upper Midwest states like Michigan. Over 610 MW across 9 projects were built in the Wolverine State, which is close to achieving the 1,000-MW mark within the first few years of its RPS program, while continuing to be a leader in wind manufacturing jobs.

    AWEA indicated that the America's wind energy industry workers had been living under threat of the PTC's expiration for over a year and layoffs had already begun, as companies idled factories because of a lack of orders for 2013. Uncertain Federal policies have caused a "boom-bust" cycle in U.S. wind energy development for over a decade. Half the American jobs in wind energy -- 37,000 out of 75,000 -- and hundreds of U.S. factories in the supply chain would have been at stake had the PTC been allowed to expire, according to a study by Navigant Consulting. Gramlich said, "America's wind energy industry is back on track. With a banner year to celebrate, we look forward to showing how wind power can continue to strengthen America's energy future, and create jobs and business for our families and communities."
 
    The global wind energy industry will gather in Chicago, May 5-8, 2013, for the world's largest annual wind power event, WINDPOWER 2013. Thousands of workers and leaders from all sectors will attend to show their wares, attend conference sessions, and seek further solutions for success.

 

    Access a release from AWEA (click here). Access the WINDPOWER 2013 website for complete details (click here). Access the AWEA website for more information (click here). [#Energy/Wind, #MIEnergy/Wind]

 

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BP Pleads Guilty To 14 Criminal Counts; Will Pay Record $4 Billion

Jan 29: Attorney General Eric Holder announced that BP Exploration and Production Inc. pleaded guilty on January 29, to 14 criminal counts for its illegal conduct leading to and after the 2010 Deepwater Horizon disaster, and was sentenced to pay $4 billion in criminal fines and penalties, the largest criminal resolution in U.S. history [See WIMS 11/27/12]. He said, "Today's guilty plea and sentencing represent a significant step forward in the Justice Department's ongoing efforts to seek justice on behalf of those affected by one of the worst environmental disasters in American history. I'm pleased to note that more than half of this landmark resolution -- which totals $4 billion in penalties and fines, and represents the single largest criminal resolution ever -- will help to provide direct support to Gulf Coast residents as communities throughout the region continue to recover and rebuild."

    Assistant Attorney General Lanny Breuer of the Justice Department's Criminal Division said, "The Deepwater Horizon explosion was a national tragedy that resulted in the senseless deaths of 11 people and immense environmental damage. Through the tenacious work of the Task Force, BP has received just punishment for its crimes leading up to and following the explosion.  The Justice Department will keep a watchful eye on BP's compliance with the plea agreement's terms, including the requirements of full cooperation with the department's ongoing criminal investigation, implementation of enhanced safety protocols and adherence to the recommendations of two newly installed monitors.  Should BP fail to comply, we will act swiftly and firmly."

    BP's guilty plea was accepted, and the sentence was imposed, by U.S. District Judge Sarah S. Vance of the Eastern District of Louisiana. During the guilty plea and sentencing proceeding, Judge Vance found, among other things, that the consequential fines imposed under the plea agreement far exceed any imposed in U.S. history, and are structured so that BP will feel the full brunt of the penalties. She also noted that the agreement provides just punishment and significant deterrence, requiring detailed drilling safeguards, monitors and other stringent, special conditions of probation so that BP's future conduct will be closely watched.  

    BP pleaded guilty to each count charged in an information filed in U.S. District Court in the Eastern District of Louisiana, including 11 counts of felony manslaughter, one count of felony obstruction of Congress and violations of the Clean Water and Migratory Bird Treaty Acts. In its guilty plea, BP admitted that, on April 20, 2010, the two highest-ranking BP supervisors onboard the Deepwater Horizon, known as BP's "Well Site Leaders" or "company men," negligently caused the deaths of 11 men and the resulting oil spill. The company also admitted that on that evening, the two well site leaders observed clear indications that the Macondo well was not secure and that oil and gas were flowing into the well, but chose not to take obvious and appropriate steps to prevent the blowout. Additionally, BP admitted that as a result of the Well Site Leaders' conduct, control of the Macondo well was lost, resulting in catastrophe. 

    BP also admitted during its guilty plea that the company, through a senior executive, obstructed an inquiry by the U.S. Congress into the amount of oil being discharged into the Gulf while the spill was ongoing. BP also admitted that the senior executive withheld documents, provided false and misleading information in response to the U.S. House of Representatives' request for flow-rate information, manipulated internal estimates to understate the amount of oil flowing from the well and withheld data that contradicted BP's public estimate of 5,000 barrels of oil per day. At the same time that the senior executive was preparing his manipulated estimates, BP admitted, the company's internal engineering response teams were using sophisticated methods that generated significantly higher estimates.  The Flow Rate Technical Group, consisting of government and independent scientists, later concluded that more than 60,000 barrels per day were leaking into the Gulf during the relevant time, contrary to BP's representations to Congress.

    According to the sentence imposed by Judge Vance pursuant to the plea agreement, more than $2 billion dollars will directly benefit the Gulf region. By order of the court, approximately $2.4 billion of the $4.0 billion criminal recovery is dedicated to acquiring, restoring, preserving and conserving – in consultation with appropriate state and other resource managers – the marine and coastal environments, ecosystems and bird and wildlife habitat in the Gulf of Mexico and bordering states harmed by the Deepwater Horizon oil spill.  This portion of the criminal recovery is also to be directed to significant barrier island restoration and/or river diversion off the coast of Louisiana to further benefit and improve coastal wetlands affected by the oil spill. An additional $350 million will be used to fund improved oil spill prevention and response efforts in the Gulf through research, development, education and training.

    BP was also sentenced to five years of probation -- the maximum term of probation permitted under law. The company is also required, according to the order entered by the court pursuant to the plea agreement, to retain a process safety and risk management monitor and an independent auditor, who will oversee BP's process safety, risk management and drilling equipment maintenance with respect to deepwater drilling in the Gulf of Mexico. BP is also required to retain an ethics monitor to improve its code of conduct to ensure BP's future candor with the U.S. government.

 

    At the hearing, Luke Keller, a Vice President of BP America Inc., addressed the Court, the families of the deceased, and other victims of the Deepwater Horizon tragedy and reiterated the company's deep regret and apology for its role in the Deepwater Horizon accident. He said, "We -- and by that I mean the men and the women of the management of BP, its Board of Directors, and its many employees -- are deeply sorry for the tragic loss of the 11 men who died and the others who were injured that day. Our guilty plea makes clear, BP understands and acknowledges its role in that tragedy, and we apologize – BP apologizes – to all those injured and especially to the families of the lost loved ones. BP is also sorry for the harm to the environment that resulted from the spill, and we apologize to the individuals and communities who were injured." 

    In a related matter, U.S. District Court Judge Jane Triche Milazzo has scheduled a hearing in U.S. District Court in New Orleans, Louisiana, for February 14, 2013 at 10:00 AM to consider the guilty plea agreement entered into by Transocean Deepwater Inc. (Transocean), pursuant to which Transocean would plead guilty to a one-count information charging Transocean with violation of the Clean Water and Migratory Bird Act and pay criminal fines and other penalties totaling $400 million. Any written submission by a victim must be received by the Court by February 1, 2013. 

    Access a release from the Attorney General (click here). Access a copy of the Court's Order, which provides contact information for victims, as well as the guilty plea agreement and charging document (click here).Access more information on the BP case (click here). Access a lengthy release from BP (click here). Access the Transocean Court's Order, which provides contact information for victims, as well as the guilty plea agreement and charging document (click here). [#Energy/OilSpill]

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Senate Narrowly Approves $50+ Billion Superstorm Sandy Relief

Jan 28: With 60 votes required, the U.S. Senate narrowly approved H.R.152, the Hurricane Sandy Emergency Supplemental Appropriations bill, providing $50-plus billion for disaster relief assistance to assist people and governments on the East Coast in recovering from Superstorm Sandy which made landfall nearly three months ago. The Senate vote was 62 to 36 with two note voting. The vast majority of Senate Republicans (36) voted against the measure. The measure, which was also hotly debated in the House, passed that body on January 15 with a vote of 241-180, and is now expected to be quickly signed by the President. 

 

    The bill provides in part: $16 billion in Community Development Block Grants; $5.3 billion Army Corps of Engineers beach and flood control projects; $13 billion total for transportation programs; $600 million for Clean Water Infrastructure; 800 million for hospitals, health centers, and educational services; and $2 million for Toxic Superfund Sites.

 

    New Jersey Governor Chris Christie, New York Governor Andrew Cuomo and Connecticut Governor Dannel Malloy released a joint statement regarding the Senate's passage saying, "Our genuine thanks and gratitude goes out to the U.S. Senate for its thoughtful consideration and passage of the Hurricane Sandy disaster relief package. Despite the difficult path in getting to this moment, the Senate membership clearly recognized early on the urgency and necessity of approving the full aid package and its importance in rebuilding our battered infrastructure and getting our millions of affected residents back on their feet as quickly as possible. To all Americans, we are grateful for their willingness to come to our aid as we take on the monumental task of rebuilding and we pledge to do the same should our fellow citizens find themselves facing unexpected and harsh devastation. We also make special note of the tenacious efforts of our respective Congressional delegations in steering the Sandy aid package through their respective houses and bringing this aid home to their people."

 

        U.S. Senator Robert Menendez (D-NJ) issued a release on the bill indicating that the Senate also "soundly defeated a Republican amendment that would have cut all federal discretionary programs to pay for the emergency relief. " Sen. Menendez said in an impassioned floor speech before the votes urging passage, "Ninety-one days we have been languishing waiting for our government to respond to critical issues, life and death situations of fellow Americans….in which people have not been able to get their lives back on track. Another number, 118 days. That's all we have left until Memorial Day and the beginning of a critically important season for New Jersey's economy -- a $37 billion tourism industry that cannot get back on its feet unless the federal government says, 'Here's how we're going to help businesses reopen. Here's how we're going to help people get back into their homes. That is not only important to the state's economy but to the national economy. We need to act today. The time has passed."  

 

   Senator Frank Lautenberg (D-NJ) said, "Today's action in the Senate is a breakthrough for our region and victims of Superstorm Sandy who will at long last get the federal resources they need to recover and rebuild. While this package is overdue because of needless delay from House Republican leadership, we have finally come together and made a national commitment to provide families, businesses and communities with aid to come back even stronger.  New Jersey was devastated by this terrible storm and this legislation will help rebuild homes, businesses, and public infrastructure while strengthening our shore and transportation network for future extreme weather events." Sen. Lautenberg notes that Congress previously passed and the President signed into law a $9.7 billion flood insurance measure that was originally part of the bill the Senate passed in December, bringing the Sandy Federal aid total to more than $60 billion.

   

    Scott Slesinger, legislative director for the Natural Resources Defense Council (NRDC), issued a statement saying, "This bill will help tens of thousands of Americans recover from Hurricane Sandy, and it will allow communities to start working to prevent damage from future storms, which sadly are sure to come until we reduce the threat of climate change. Unfortunately, after delaying action, House Republicans included amendments to this bill that impede the protection of our oceans and lands. Given the pressing needs of Sandy's victims, the Senate needed to send this relief package to the President right now. But in the future, the Senate should undo the legislative hostage-taking that the House Republicans perpetrated, in what should have been a clean bill, to alleviate suffering, restore our coasts, and protect communities."

 

    Access the joint statement from the Governors (click here). Access a release from Sen. Menendez (click here). Access a release from Sen. Lautenberg with a summary of what the bill includes (click here). Access a release from NRDC (click here). Access legislative details and links to roll call votes for H.R.152 (click here). [#Climate]

 

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Coastal Climate Change Impacts, Adaptation, & Vulnerabilities

Jan 28: According to a new technical report, the effects of climate change will continue to threaten the health and vitality of U.S. coastal communities' social, economic and natural systems. The report, Coastal Impacts, Adaptation, and Vulnerabilities: a technical input to the 2013 National Climate Assessment, authored by leading scientists and experts, emphasizes the need for increased coordination and planning to ensure U.S. coastal communities are resilient against the effects of climate change.

    The recently released report examines and describes climate change impacts on coastal ecosystems and human economies and communities, as well as the kinds of scientific data, planning tools and resources that coastal communities and resource managers need to help them adapt to these changes. Margaret Davidson of NOAA's Office of Ocean and Coastal Resource Management and co-lead author of the report said, "Sandy showed us that coastal states and communities need effective strategies, tools and resources to conserve, protect, and restore coastal habitats and economies at risk from current environmental stresses and a changing climate. Easing the existing pressures on coastal environments to improve their resiliency is an essential method of coping with the adverse effects of climate change."

    A key finding in the report is that all U.S. coasts are highly vulnerable to the effects of climate change such as sea-level rise, erosion, storms and flooding, especially in the more populated low-lying parts of the U.S. coast along the Gulf of Mexico, Mid-Atlantic, northern Alaska, Hawaii, and island territories. Another finding indicated the financial risks associated with both private and public hazard insurance are expected to increase dramatically. Virginia Burkett of the U.S. Geological Survey (USGS) and co-lead author of the report said, "An increase in the intensity of extreme weather events such as storms like Sandy and Katrina, coupled with sea-level rise and the effects of increased human development along the coasts, could affect the sustainability of many existing coastal communities and natural resources."

    The authors also emphasized that storm surge flooding and sea-level rise pose significant threats to public and private infrastructure that provides energy, sewage treatment, clean water and transportation of people and goods. These factors increase threats to public health, safety, and employment in the coastal zone. The report's authors noted that the population of the coastal watershed counties of the U.S. and territories, including the Great Lakes, makes up more than 50 percent of the nation's population and contributed more than $8.3 trillion to the 2011 U.S. economy but depend on healthy coastal landforms, water resources, estuaries and other natural resources to sustain them. Climate changes, combined with human development activities, reduce the ability of coasts to provide numerous benefits, including food, clean water, jobs, recreation and protection of communities against storms.

    Seventy-nine Federal, academic and other scientists, including the lead authors from the NOAA and USGS, authored the report which is being used as a technical input to the third National Climate Assessment -- an interagency report produced for Congress once every four years to summarize the science and impacts of climate change on the United States [See WIMS 1/11/13]. Other key findings of the report include:

• Expected public health impacts include a decline in seafood quality, shifts in disease patterns and increases in rates of heat-related morbidity.
• Changes in the location and the time of year when storms form can lead to large changes in where storms land and the impacts of storms. Any sea-level rise is virtually certain to exacerbate storm-surge and flooding related hazards.
• Because of changes in the hydrological cycle due to warming, precipitation events (rain, snow) will likely be heavier. Combined with sea-level rise and storm surge, this will increase flooding severity in some coastal areas, particularly in the Northeast.
• Temperature is primarily driving environmental change in the Alaskan coastal zone. Sea ice and permafrost make northern regions particularly susceptible to temperature change. For example, an increase of two degrees Celsius during the summer could basically transform much of Alaska from frozen to unfrozen, with extensive implications.
• As the physical environment changes, the range of a particular ecosystem will expand, contract or migrate in response. The combined influence of many stresses can cause unexpected ecological changes if species, populations or ecosystems are pushed beyond a tipping point.
• Although adaptation planning activities in the coastal zone are increasing, they generally occur in an ad-hoc manner and are slow to be implemented. Efficiency of adaptation can be improved through more accurate and timely scientific information, tools, and resources, and by integrating adaptation plans into overall land use planning as well as ocean and coastal management.
• An integrated scientific program will reduce uncertainty about the best ways coastal communities can to respond to sea-level rise and other kinds of coastal change. This, in turn, will allow communities to better assess their vulnerability and to identify and implement appropriate adaptation and preparedness options.

    Access a release from USGS (click here). Access the complete 230-page report (click here). [#Climate, #Land, #Water]

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D.C. Circuit Denies Full Panel Review Of Cross State Air Pollution Rule

Jan 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1302, EME Homer City Generation, L.P v. U.S. EPA, consolidate with 44 additional cases. In this high-profile case, on August 21, 2012, the Appeals Court, in a split 2-1 decision, dealing with U.S. EPA's controversial Cross State Air Pollution Rule (CSAPR), vacated the Transport Rule and the Transport Rule FIPs and remand this proceeding to EPA. EPA and others requested an en banc (full panel) rehearing of the case and the Appeals Court denied the request. Judge Kavanaugh wrote the opinion of the court when the three-judge panel ruled in August, joined by Judge Griffith. The opinion expressly left in place the existing Clean Air Interstate Rule (CAIR) pending EPA's further action.

 

    In its August ruling the majority ruled in part, ". . .this Court has affirmed numerous EPA clean air decisions in recent years when those agency decisions met relevant statutory requirements and complied with statutory constraints. . . In this case, however, we conclude that EPA has transgressed statutory boundaries. Congress could well decide to alter the statute to permit or require EPA's preferred approach to the good neighbor issue. Unless and until Congress does so, we must apply and enforce the statute as it's now written. Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA's Transport Rule. It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here."

 

    The Transport Rule defined emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems.The Transport Rule targets two pollutants -- sulfur dioxide (SO2) and nitrogen oxides (NOx). In a release on the decision, the Environmental Defense Fund (EDF) said that CSAPR was an "historic pollution reduction measure that would have protected air quality for 240 million Americans across the Eastern United States and saved up to 34,000 lives each year. EDF General Counsel Vickie Patton said, "We urge EPA, states and cities alike to take corrective action and secure healthier, longer lives for millions of Americans. The states and cities afflicted by power plant pollution can and should petition EPA under the nation's clean air laws to safeguard the health of their citizens."   

    Three petitions were filed asking the full court for a rehearing. EDF -- joined by the American Lung Association, Clean Air Council, Natural Resources Defense Council, and Sierra Club -- filed one of the petitions in support of the Cross-State Rule. EPA also filed a petition, as did a coalition of 15 states and cities (North Carolina, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New York, Rhode Island, Vermont, Baltimore, Bridgeport, Chicago, New York City, Philadelphia, and Washington, D.C.).

    EDF indicates that CSAPR would have reduced the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone -- more commonly known as soot and smog -- drift across the borders of those states and contribute to dangerous, sometimes lethal, levels of pollution in downwind states. CSAPR would have reduced power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. 

    EPA issued the Cross-State Air Pollution Rule under the "good neighbor" protections of the Clean Air Act, which ensure that the emissions from one state's power plants do not cause harmful pollution levels in neighboring states. While no one is immune to these impacts, children and the elderly in downwind states are especially vulnerable. EPA estimated the Cross-State Rule would have: Saved up to 34,000 lives each year; Prevented 15,000 heart attacks each year; Prevented 400,000 asthma attacks each year; and Provided up to $280 billion in health benefits for America each year .

    On November 19, 2012, EPA Assistant Administrator Gina McCarthy issued a Memorandum regarding the "Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule." The Memo explains that while the request for en banc review is pending CAIR remains in effect and says, "In the meantime, we have work to do. Statutory deadlines and other circumstances will require us to take various actions during this period and it is important that we all understand how best to take into account the Court's decision." That Memo now takes on new importance and will apparently guide EPA on this issue until new guidance or new rules are proposed (See link below).

    The coalition of states -- led by New York Attorney General Eric Schneiderman -- urged the court to uphold the Federal Cross-State Air Pollution Rule in earlier arguments before the D.C. Circuit. Schneiderman said back in April 2012, "For too long, New York and other states have been harmed by upwind smokestack pollution. It is critical that strong rules protecting the air we breathe are both upheld and enforced. The transport of this kind of air pollution into our state makes it exceedingly difficult for New York to meet federal air quality standards intended to protect public health, resulting in undue hardship for people suffering from asthma and other health conditions. My office stands ready and willing to fight for our ability to maintain healthy air with the reasonable assurance that our efforts won't be undercut by out-of-state polluters." 

    Access the August 21, 2012 Appeals Court complete 104-page opinion and dissent (click here, dissent begins on pp. 61). Access a lengthy release from EDF with links to related information (click here). Access the EPA November 19, 2012 Memo (click here). Access EPA's petition for rehearing en banc (click here). Access EPA's CSAPR website for background and further details (click here). Access a release from the NY attorney general (click here). [#Air, #MIAir, #CADC]

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