Administration Proposes To End Gray Wolf ESA Protection

Jun 7: The U.S. Fish and Wildlife Service (FWS or Service) proposed to remove the gray wolf (Canis lupus) from the list of threatened and endangered species. According to a release, the proposal comes after a comprehensive review confirmed its successful recovery following management actions undertaken by Federal, state and local partners following the wolf's listing under the Endangered Species Act over three decades ago. The Service is also proposing to maintain protection and expand recovery efforts for the Mexican wolf (Canis lupus baileyi) in the Southwest, where it remains endangered.

    Under the proposal, state wildlife management agency professionals would resume responsibility for management and protection of gray wolves in states where wolves occur. FWS said, "The proposed rule is based on the best science available and incorporates new information about the gray wolf's current and historical distribution in the contiguous United States and Mexico." It focuses the protection on the Mexican wolf, the only remaining entity that warrants protection under the Act, by designating the Mexican wolf as an endangered subspecies.

    In the Western Great Lakes and Northern Rocky Mountains, the gray wolf has rebounded from the brink of extinction to exceed population targets by as much as 300 percent. Gray wolf populations in the Northern Rocky Mountain Distinct and Western Great Lakes Population Segments were removed from the Federal List of Endangered and Threatened Wildlife in 2011 and 2012.

    FWS Director Dan Ashe said, "From the moment a species requires the protection of the Endangered Species Act, our goal is to work with our partners to address the threats it faces and ensure its recovery. An exhaustive review of the latest scientific and taxonomic information shows that we have accomplished that goal with the gray wolf, allowing us to focus our work under the ESA on recovery of the Mexican wolf subspecies in the Southwest."

    The Service will open a 90-day comment period on both proposals seeking additional scientific, commercial and technical information from the public and other interested parties. The comment period will commence upon publication of the proposed rules in the Federal Register. Relevant information received during this comment period will be reviewed and addressed in the Service's final determination on these proposals, which will be made in 2014. The Service must receive requests for public hearings, in writing, within 45 days of the publication in the Federal Register.

    FWS said that the proposal is supported by governors and state wildlife agency leadership in each of the states with current wolf populations, as well as those that will assume responsibility for managing wolves dispersing into their states, such as Washington, Oregon, Colorado, Utah and North Dakota.

    The Service's comprehensive review determined that the current listing for gray wolf, which was developed 35 years ago, erroneously included large geographical areas outside the species' historical range. In addition, the review found that the current gray wolf listing did not reasonably represent the range of the only remaining of the Mexican wolf population in the Southwest. Gray wolves were extirpated from most of the Lower 48 states by the middle of the 20th century, with the exception of northern Minnesota and Isle Royale in Michigan. Subsequently, wolves from Canada occasionally dispersed south and successfully began recolonizing northwest Montana in 1986. In 1995 and 1996, 66 wolves from southwestern Canada were reintroduced into Yellowstone National Park and central Idaho.

    In 2002 the Northern Rocky Mountain population exceeded the minimum recovery goals of 300 wolves for a third straight year, and they were successfully delisted in the Northern Rocky Mountains in 2012 and Western Great Lakes in 2011. Today, there are at least 6,100 gray wolves in the contiguous United States, with a current estimate of 1,674 in the Northern Rocky Mountains and 4,432 in the Western Great Lakes.

    The number of Mexican wolves continues to increase within the Blue Range Wolf Recovery Area. During the 2012 annual year-end survey, the Mexican wolf Interagency Field Team counted a minimum of 75 Mexican wolves in the wild in Arizona and New Mexico, an increase over the 2011 minimum population count of 58 wolves known to exist in the wild. In addition to listing the Mexican wolf as an endangered subspecies, the Service proposes to modify existing regulations governing the nonessential experimental population to allow captive raised wolves to be released throughout the Blue Range Wolf Recovery Area in the Apache and Gila National Forests east central Arizona and west central New Mexico, and to disperse into the Mexican Wolf Experimental Population Area in the areas of Arizona and New Mexico located between I-40 and I-10.

    Noah Greenwald, endangered species director with the Center for Biological Diversity (CBD) said, "This is like kicking a patient out of the hospital when they're still attached to life support. Wolves cling to a sliver of their historic habitat in the lower 48, and now the Obama administration wants to arbitrarily declare victory and move on. They need to finish the job that Americans expect, not walk away the first chance they get. This proposal is a national disgrace. Our wildlife deserve better." CBD indicated that wolves today occupy just 5 percent of their historic habitat in the continental United States. The proposal means that wolves will never fully reoccupy prime wolf habitat in the southern Rocky Mountains, California and Northeast, and will hinder ongoing recovery in the Pacific Northwest.

    Sierra Club Executive Director Michael Brune issued a statement saying, "Wolf recovery has been one of our greatest Endangered Species Act success stories, but stopping now before the population is fully recovered will negate the decades of hard work that have gone into bringing wolves back from the brink of extinction.  Without federal protections this symbol of our wild heritage will slide back into harm's way. We've seen the brutal assault on wolves that followed the loss of federal protections in Wyoming, Montana and Idaho. Increasingly hostile anti-wolf policies by states in charge of ensuring wolves' survival don't bode well for the future of this majestic creature. Now is the time that we should be pressing in to finish the job of wolf recovery, not abandoning wolves to the same kinds of destructive forces that endangered them in the first place. We urge the administration to preserve protections for these amazing animals until the success story is complete."

    Access a release from FWS with links to more information on gray and Mexican wolves, supporting comments, including the proposed rules and commenting procedures (click here). Access a release from CBD (click here). Access a release from Sierra Club (click here). [#Wildlife]

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$384 Billion Needed For Drinking Water Systems Through 2030

Jun 4: U.S. EPA released results of a survey showing that $384 billion in improvements are needed for the nation's drinking water infrastructure through 2030 for systems to continue providing safe drinking water to 297 million Americans. EPA's fifth Drinking Water Infrastructure Needs Survey and Assessment identifies investments needed over the next 20 years for thousands of miles of pipes and thousands of treatment plants, storage tanks and water distribution systems, which are all vital to public health and the economy. The national total of $384 billion includes the needs of 73,400 water systems across the country, as well as American Indian and Alaska Native Village water systems. 

    EPA Acting Administrator Bob Perciasepe said, "A safe and adequate supply of drinking water in our homes, schools and businesses is essential to the health and prosperity of every American. The survey EPA released today shows that the nation's water systems have entered a rehabilitation and replacement era in which much of the existing infrastructure has reached or is approaching the end of its useful life. This is a major issue that must be addressed so that American families continue to have the access they need to clean and healthy water sources."

    The survey, required under the Safe Drinking Water Act to be submitted to Congress every four years by EPA, was developed in consultation with all 50 states and the Navajo Nation. The survey looked at the funding and operational needs of more than 3,000 public drinking water systems across the United States, including those in Tribal communities, through an extensive questionnaire. In many cases, drinking water infrastructure was reported to be 50-100 years old. The assessment shows that improvements are primarily needed in: Distribution and transmission: $247.5 billion to replace or refurbish aging or deteriorating lines; Treatment: $72.5 billion to construct, expand or rehabilitate infrastructure to reduce contamination; Storage: $39.5 billion to construct, rehabilitate or cover finished water storage reservoirs; and Source: $20.5 billion to construct or rehabilitate intake structures, wells and spring collectors

    EPA allocates Drinking Water State Revolving Fund grants to states based on the finding of the assessment. These funds help states to provide low-cost financing to public water systems for infrastructure improvements necessary to protect public health and comply with drinking water regulations. Since its inception in 1997, the Drinking Water State Revolving Fund has provided close to $15 billion in grants to all 50 states and Puerto Rico to improve drinking water treatment, transmission and distribution. The Drinking Water State Revolving Fund program has also provided more than $5.5 billion to protect drinking water in disadvantaged communities.

    According to a release, EPA said it is committed to utilizing the tools provided under the Safe Drinking Water Act (SDWA) to assist states and to better target resources and technical assistance toward managing the nation's drinking water infrastructure. In addition to Drinking Water State Revolving Fund grants, EPA awarded nearly $15 million in funding in 2012 to provide training and technical assistance to small drinking and wastewater systems -- those serving fewer than 10,000 people -- and to private well owners to improve small system operations and management practices and to promote sustainability. EPA also works with states, municipalities and water utilities to strengthen the resiliency of drinking water systems against the potential impacts of severe weather events and climate change.

    EPA's estimates follow those by the American Society of Civil Engineers (ASCE) included in their 2013 Report Card for America's Infrastructure release in March of this year. ASCE gave the nation's drinking water infrastructure an overall grade of "D." ASCE indicated, "At the dawn of the 21st century, much of our drinking water infrastructure is nearing the end of its useful life. There are an estimated 240,000 water main breaks per year in the United States. Assuming every pipe would need to be replaced, the cost over the coming decades could reach more than $1 trillion, according to the American Water Works Association [See WIMS 3/20/13].        

 

    Access a release from EPA and link to more information including the 86-page report and a fact sheet (click here). Access the 2013 ASCE Report Card including grades, state information, videos and interactive charts and links to the apps (click here). [#Drink]

 

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Next Round Of Climate Change Meetings Begin In Bonn

Jun 3: Following the recent milestone announcement that CO2 levels have surpassed the critical 400 PPM benchmark [See WIMS 5/13/13]; and the bombshell disputed research announcement that CFC not CO2 have been driving recent warming trends and global cooling could possibly be in store for the next several decades [See WIMS 5/31/13, & related article below]; governments begin their next round of international climate change talks under the United Nations in Bonn, Germany today. The meeting resumes the second session of the "Ad Hoc Working Group on the Durban Platform for Enhanced Action" (ADP), which is tasked both to complete a universal climate agreement by 2015 that will come into force from 2020, and to find ways to increase the current inadequate level of global ambition to address human-generated climate change before the end of the decade.

    The ADP is resuming its work in parallel with the annual sessions of the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI) under the UN Framework Convention on Climate Change (UNFCCC). These bodies will play an essential role in the effective implementation of the outcomes of the recent UN Climate Change Conferences in Cancún (in 2010), in Durban (in 2011) and in Doha last year. During the first round of talks under the ADP in Bonn, which ended May 3 this year, governments undertook work on the main contours and central elements of the 2015 agreement, and also on a practical and results-oriented approach to raising immediate climate ambition.

    ADP Co-Chairs, Jayant Moreshver Mauskar and Harald Dovland said in a joint statement, "The first meeting this year demonstrated that the negotiation is on track to achieve the agreed milestones and objectives. We have already seen many areas of possible common ground. We hope that at this session, governments will build on these areas by engaging on topics where differences can be bridged and further enlarge common ground." In addition to round table discussions including on possible types of commitments and bottom-up and top-down elements in the new agreement, a special ADP workshop at the June meeting will focus on strengthening adaptation to climate change through the 2015 agreement. A workshop on pre-2020 ambition -- the third of its kind under the ADP -- will focus on energy, including on how to scale up renewable energy, enhance energy efficiency and consider carbon capture and storage.

    At a special interactive event on June 8, the ADP Co-Chairs will hear proposals from observer organizations on the question of how non-State actors can further contribute to collective action on climate change and how the 2015 agreement can catalyze such action by non-State actors. Observers not physically present in the room will be able to participate virtually via webcast from the UNFCCC website and on Twitter.

    UNFCCC Executive Secretary Christiana Figueres said, "The negotiations are now in a crucial conceptual phase of the 2015 agreement, and need inputs from all relevant stakeholders. With growing numbers of countries enacting climate legislation, with investment in renewables growing and private sector attention to climate risk increasing, the negotiations can capture the energy and dynamism of all stakeholders, who in turn need to provide clear inputs as to where more ambition is possible, and where international policy guidance from governments can unleash even more action on their part." Figueres also underlined the importance of the SBSTA and SBI meetings to push forward the significant progress already made in creating an international response to climate change and to sustain a positive momentum towards the next annual UN Climate Change meeting in Warsaw, scheduled for November 11-22, 2013.

    She said, "While we negotiate the new universal agreement, we must not forget that governments must deliver on existing agreements related to finance, technology and capacity-building. Because of this, implementation of the agreed support systems must continue with the same urgency and focus as the ADP negotiation. I look forward to seeing success showcased across all key areas of climate action when we meet again in Warsaw."  

    In Bonn, the process of the in-depth review of the adequacy of the 2 degrees Celsius goal agreed by governments will begin. The review is a reality check on the advance of the climate change threat and the possible need to mobilize further action, and is set to conclude by 2015. Other key discussions include talks on institutional arrangements that provide the most vulnerable populations with better protection against loss and damage caused by slow onset events such as rising sea levels; on clarifying ways to measure deforestation; and on avoiding negative consequences of climate action.

    On June 11, at a special event, the International Energy Agency will present its latest World Energy Outlook Special Report "Redrawing the energy-climate map" to delegates, which will lay out important new insights into the future track of global greenhouse gas emissions. A special forum will also be held to create public awareness, increase public participation in climate change decision-making, and build capacity through climate change education and training. Press conferences held during the sessions will be announced on the UNFCCC website. The UNFCCC Executive Secretary is scheduled to give a closing press briefing on June 14.

    Access a release from UNFCCC (click here). Access the UNFCCC Bonn meeting website for links to complete information and details (click here). Access detailed day-by-day coverage and summaries of the meeting from IISD (click here). Access a release from UNFCCC on the 400 ppm milestone (click here). Access a release on the QB-Lu research on CFC v. CO2 (click here). Access THE QB-Lu research paper on CFC v. CO2 (click here). [#Climate]

---

Climate Nexus Debunks Q-B Lu CFC v. CO2 Research - May 31: The nonprofit organization, Climate Science Watch, dedicated to holding public officials accountable for using climate research effectively and with integrity and investigating and diagnosing the use and misuse of climate change research, has posted a guest posting from Climate Nexus indicating that research from Qing-Bin Lu, a professor of physics, astronomy, biology and chemistry at the University of Waterloo is "not new, and have not held up to scientific scrutiny in the past."

 

    Q-B Lu's new peer-reviewed paper, published in the International Journal of Modern Physics B last week indicates that chlorofluorocarbons (CFCs) are to blame for global warming since the 1970s and not carbon dioxide. Lu said, "Conventional thinking says that the emission of human-made non-CFC gases such as carbon dioxide has mainly contributed to global warming. But we have observed data going back to the Industrial Revolution that convincingly shows that conventional understanding is wrong. In fact, the data shows that CFCs conspiring with cosmic rays caused both the polar ozone hole and global warming." Lu indicates that, ". . .since 2002, global temperatures have actually declined -- matching a decline in CFCs in the atmosphere. My calculations of CFC greenhouse effect show that there was global warming by about 0.6 °C from 1950 to 2002, but the earth has actually cooled  since 2002. The cooling trend is set to continue for the next 50-70 years as the amount of CFCs in the atmosphere continues to decline."

 

    The Climate Nexus guest post entitled, "Qing-Bin Lu revives debunked claims about cosmic rays and CFCs," indicates, "This sensationalist headline is often repeated with little mention that Lu's claims are not new, and have not held up to scientific scrutiny in the past. In fact, Lu has been promoting his theories about CFCs for years, and mainstream scientists have found no merit in them. Critics have said Lu makes a fundamental scientific error by confusing correlation with causation, and does not effectively challenge the physical evidence of the warming effects of CO2, a body of knowledge built up over 150 years." Climate Nexus indicates "the facts" are:

• This theory has been considered and dismissed before. A 2010 report by the National Academies of Science was commissioned by Congress to examine all the evidence surrounding global warming including the theory that cosmic rays might influence Earth's climate. It concluded that "a plausible physical mechanism… has not been demonstrated" and "cosmic rays are not regarded as an important climate forcing."
• In 2011, a peer-reviewed paper found that Lu's conclusions "are based solely on correlation… do not have a physical basis… and the findings of the IPCC… remain unchallenged."
• In response to Lu's most recent publication, several different scientists interviewed by the Vancouver Sun each said that Lu's conclusions "[go] against 150 years of very fundamental physics."
• Critics point out that Lu's paper fails to make the leap from correlation to causation, one of the most basic and most common scientific failings. This error is simply illustrated in the classic fable of the rooster who believes the sun rises because he crows. Two things may happen at the same time, but this does not mean one causes the other. A "physical mechanism" by which the two events are connected must be known, in order to fully understand causation.
• In contrast, there is strong experimental evidence of the physical mechanism by which CO2 warms the planet, evidence that (as scientists have mentioned already in response to Lu) dates back 150 years.

    Climate Nexus is "a strategic communications group dedicated to highlighting the wide-ranging impacts of climate change and clean energy solutions in the United States. Since its founding in 2011, Climate Nexus has drawn upon established and emerging science to personalize and localize the climate and energy story through work with the media, relevant NGOs and other thought leaders. With backgrounds spanning the fields of environmental science, traditional and digital media, public affairs, corporate sustainability, consulting, environmental policy, and documentary filmmaking, we bring a diverse set of skills to the greater science, technology, public health and environmental communities. And that's a good thing, because we're here to help."

 

    Access guest posting on the Climate Science Watch blog with links to referenced information (click here). Access the Climate Nexus website for additional information (click here). Access a release on the QB-Lu research on CFC v. CO2 (click here). Access THE QB-Lu research paper on CFC v. CO2 (click here). [#Climate]

 

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CFC Not CO2 Driving Warming; Cooling For 50-70 Years Possible

May 30: Chlorofluorocarbons (CFCs) are to blame for global warming since the 1970s and not carbon dioxide, according to new research from the University of Waterloo published in the International Journal of Modern Physics B this week. A release from University of Waterloo indicates that CFCs are already known to deplete ozone, but in-depth statistical analysis now shows that CFCs are also the key driver in global climate change, rather than carbon dioxide (CO2) emissions. Qing-Bin Lu, a professor of physics and astronomy, biology and chemistry in Waterloo's Faculty of Science said, "Conventional thinking says that the emission of human-made non-CFC gases such as carbon dioxide has mainly contributed to global warming. But we have observed data going back to the Industrial Revolution that convincingly shows that conventional understanding is wrong. In fact, the data shows that CFCs conspiring with cosmic rays caused both the polar ozone hole and global warming."

    Professor Lu said further, "Most conventional theories expect that global temperatures will continue to increase as CO2 levels continue to rise, as they have done since 1850. What's striking is that since 2002, global temperatures have actually declined -- matching a decline in CFCs in the atmosphere. My calculations of CFC greenhouse effect show that there was global warming by about 0.6 °C from 1950 to 2002, but the earth has actually cooled  since 2002. The cooling trend is set to continue for the next 50-70 years as the amount of CFCs in the atmosphere continues to decline."

    The findings are based on in-depth statistical analyses of observed data from 1850 up to the present time, Professor Lu's cosmic-ray-driven electron-reaction (CRE) theory of ozone depletion and his previous research into Antarctic ozone depletion and global surface temperatures. He said, "It was generally accepted for more than two decades that the Earth's ozone layer was depleted by the sun's ultraviolet light-induced destruction of CFCs in the atmosphere. But in contrast, CRE theory says cosmic rays -- energy particles originating in space -- play the dominant role in breaking down ozone-depleting molecules and then ozone."

    Lu's theory has been confirmed by ongoing observations of cosmic ray, CFC, ozone and stratospheric temperature data over several 11-year solar cycles. Professor Lu said, "CRE is the only theory that provides us with an excellent reproduction of 11-year cyclic variations of both polar ozone loss and stratospheric cooling. After removing the natural cosmic-ray effect, my new paper shows a pronounced recovery by ~20% of the Antarctic ozone hole, consistent with the decline of CFCs in the polar stratosphere." By proving the link between CFCs, ozone depletion and temperature changes in the Antarctic, Professor Lu was able to draw almost perfect correlation between rising global surface temperatures and CFCs in the atmosphere. He said, "The climate in the Antarctic stratosphere has been completely controlled by CFCs and cosmic rays, with no CO2 impact. The change in global surface temperature after the removal of the solar effect has shown zero correlation with CO2 but a nearly perfect linear correlation with CFCs -- a correlation coefficient as high as 0.97."

    Data recorded from 1850 to 1970, before any significant CFC emissions, show that CO2 levels increased significantly as a result of the Industrial Revolution, but the global temperature, excluding the solar effect, kept nearly constant. The conventional warming model of CO2 , suggests the temperatures should have risen by 0.6°C over the same period, similar to the period of 1970-2002. The analyses indicate the dominance of Lu's CRE theory and the success of the Montreal Protocol on Substances that Deplete the Ozone Layer.

Professor Lu said, "We've known for some time that CFCs have a really damaging effect on our atmosphere and we've taken measures to reduce their emissions. We now know that international efforts such as the Montreal Protocol have also had a profound effect on global warming but they must be placed on firmer scientific ground."

 

    Terry McMahon, dean of the faculty of science said, "This study underlines the importance of understanding the basic science underlying ozone depletion and global climate change. This research is of particular importance not only to the research community, but to policy makers and the public alike as we look to the future of our climate." The peer-reviewed paper published this week not only provides new fundamental understanding of the ozone hole and global climate change but has superior predictive capabilities, compared with the conventional sunlight-driven ozone-depleting and CO2 -warming models.

 

    An article in the Vancouver Sun entitled, "Climate change claims raise eyebrows," indicates that Lu's research has "raised plenty of eyebrows among climate scientists." The article cites several researchers that question Lu's theory. For example, "Atmospheric physicist Kimberly Strong at the University of Toronto said she has not yet had a chance to review Lu's paper, but she takes issue with some of his 'bold claims' in the news release about the study issued by the university. . . She said Lu is 'cherry picking' data when he says the Earth has cooled since 2002. 'The overall trend is upward.'"

 

    Access a release from the University of Waterloo (click here). Access the journal abstract and information on obtaining the complete 38-page paper (click here). Access an article in the Vancouver Sun (click here). [#Climate]

 

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EPA To Look At Standards To Curb Ocean Acidification

May 29: In response to a petition from the Center for Biological Diversity (CBD), U.S. EPA is beginning an in-depth study about combating ocean acidification and reducing pollution which CBD indicates is having a dramatic impact on corals, shellfish and other sea life. CBD indicated in a release that the decision marks the first time EPA has launched a formal workgroup to identify national water quality standards that can be used to detect the effects of ocean acidification marine life. The Agency has announced that within the next six months it will convene a panel of scientists and policy makers to discuss the CBD petition.

    Miyoko Sakashita, oceans director at CBD said, "We're happy to see the EPA taking this first step toward protecting fisheries and coastal ecosystems before it's too late. Our oceans are in the midst of a dangerous transformation that, left unchecked, will make sea waters inhospitable for many, many animals. It's not too late, though, and this working group will be tasked with deciding where the tipping points are, so we can act now to prevent the worst effects." The CBD petition, filed in April, requested that the EPA develop new water-quality standards that will more effectively monitor and detect ocean acidification. CBD reports that in a letter responding to the petition, EPA wrote: "The EPA agrees with the Center for Biological Diversity and other experts in the field that recent scientific research indicates that other ocean chemistry indicators and biological parameters, beyond pH, may be relevant for ocean acidification."

    CBD cites for example, scientists have discovered that most corals can no longer grow if waters reach a certain point of corrosiveness. The petition also asked the Agency to publish guidance that will help states determine if their coastal waters are impaired by ocean acidification. In 2010, EPA directed states to periodically evaluate the impacts of ocean acidification on their coastal waters under the Clean Water Act. The move came in response to a settlement of a lawsuit brought by CBD that claimed the EPA had failed to address the impairment of waters affected by ocean acidification off Washington state. Sakashita said, "We need a national plan to deal with ocean acidification, and the EPA's announcement that it will start to tackle the problem head-on is good news."

    CBD indicated that the oceans absorb 22 million tons of carbon dioxide pollution each day, which is changing ocean chemistry. Seawater is becoming more acidic, which makes it difficult for animals to build the protective shells and skeletons they need to survive. Already, ocean acidification has caused massive oyster die-offs in the Pacific Northwest, sluggish coral growth in the Great Barrier Reef, and plankton to grow thinner, weaker shells in high latitudes.

    Access a release from CBD with links to the petition and more information on endangered oceans (click here). [#Climate, #Wildlife, #Water]  

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Wal-Mart To Pay $110 Million To Resolve Environmental Cases

May 29: Wal-Mart Stores Inc. pleaded guilty in cases filed by Federal prosecutors in Los Angeles and San Francisco to six counts of violating the Clean Water Act by illegally handling and disposing of hazardous materials at its retail stores across the United States. The Bentonville, AR-based company also pleaded guilty in Kansas City, MO, to violating the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) by failing to properly handle pesticides that had been returned by customers at its stores across the country. As a result of the three criminal cases brought by the Justice Department, as well as a related civil case filed by the U.S. EPA, Wal-Mart will pay approximately $81.6 million for its unlawful conduct. Coupled with previous actions brought by the states of California and Missouri for the same conduct, Wal-Mart will pay a combined total of more than $110 million to resolve cases alleging violations of Federal and state environmental laws.

    According to documents filed in U.S. District Court in San Francisco, from a date unknown until January 2006, Wal-Mart did not have a program in place and failed to train its employees on proper hazardous waste management and disposal practices at the store level. As a result, hazardous wastes were either discarded improperly at the store level – including being put into municipal trash bins or, if a liquid, poured into the local sewer system -- or they were improperly transported without proper safety documentation to one of six product return centers located throughout the United States. 

    Ignacia Moreno, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division said, "By improperly handling hazardous waste, pesticides and other materials in violation of federal laws, Wal-Mart put the public and the environment at risk and gained an unfair economic advantage over other companies. Today, Wal-Mart acknowledged responsibility for violations of Federal laws and will pay significant fines and penalties, which will, in part, fund important environmental projects in the communities impacted by the violations and help prevent future harm to the environment."

    Wal-Mart owns more than 4,000 stores nationwide that sell thousands of products which are flammable, corrosive, reactive, toxic or otherwise hazardous under Federal law. The products that contain hazardous materials include pesticides, solvents, detergents, paints, aerosols and cleaners. Once discarded, these products are considered hazardous waste under Federal law.

    Wal-Mart pleaded guilty in San Francisco to six misdemeanor counts of negligently violating the Clean Water Act. The six criminal charges were filed by the U.S. Attorney's Office in Los Angeles and San Francisco (each office filed three charges), and the two cases were consolidated in the Northern District of California, where the guilty pleas were formally entered before U.S. Magistrate Judge Joseph C. Spero. As part of a plea agreement filed in California, Wal-Mart was sentenced to pay a $40 million criminal fine and an additional $20 million that will fund various community service projects, including opening a $6 million Retail Compliance Assistance Center that will help retail stores across the nation learn how to properly handle hazardous waste.

    In the third criminal case resolved today, Wal-Mart pleaded guilty in the Western District of Missouri to violating FIFRA. According to a plea agreement filed in Kansas City, beginning in 2006, Wal-Mart began sending certain damaged household products, including regulated solid and liquid pesticides, from its six return centers to Greenleaf LLC, a recycling facility located in Neosho, Mo., where the products were processed for reuse and resale. Because Wal-Mart employees failed to provide adequate oversight of the pesticides sent to Greenleaf, regulated pesticides were mixed together and offered for sale to customers without the required registration, ingredients, or use information, which constitutes a violation of FIFRA. Between July 2006 and February 2008, Wal-Mart trucked more than 2 million pounds of regulated pesticides and additional household products from its various return centers to Greenleaf. In November 2008, Greenleaf was also convicted of a FIFRA violation and paid a criminal penalty of $200,000 in 2009.

    Pursuant to the plea agreement filed in Missouri and accepted today by U.S. District Judge John T. Maughmer, Wal-Mart agreed to pay a criminal fine of $11 million and to pay another $3 million to the Missouri Department of Natural Resources, which will go to that agency's Hazardous Waste Program and will be used to fund further inspections and education on pesticide regulations for regulators, the regulated community and the public. In addition, Wal-Mart has already spent more than $3.4 million to properly remove and dispose of all hazardous material from Greenleaf's facility.

    In conjunction with the guilty pleas in the three criminal cases, Wal-Mart has agreed to pay a $7.628 million civil penalty that will resolve civil violations of FIFRA and Resource Conservation and Recovery Act (RCRA). In addition to the civil penalties, Wal-Mart is required to implement a comprehensive, nationwide environmental compliance agreement to manage hazardous waste generated at its stores. The agreement includes requirements to ensure adequate environmental personnel and training at all levels of the company, proper identification and management of hazardous wastes, and the development and implementation of Environmental Management Systems at its stores and return centers. Compliance with this agreement is a condition of probation imposed in the criminal cases.

 

    In a company statement, Wal-Mart indicated, "The incidents on which the charges are based occurred years ago and involved the transportation and disposal of common consumer products. No specific environmental impact has been alleged and since then, Wal-Mart designed and implemented comprehensive environmental programs that remain in place today. Phyllis Harris, senior vice president and chief compliance officer, Wal-Mart US said, "Wal-Mart has a comprehensive and industry-leading hazardous waste program. The program was built around training, policies and procedures on how to safely handle consumer products that become hazardous waste, and we continue to run the same program in every store and club that was deployed years ago. We are pleased that this resolves all of these issues raised by the government."

 

    Wal-Mart said that EPA acknowledged in the administrative resolution that Wal-Mart has already taken steps to improve its environmental compliance program to address the issues and promote compliance with all applicable environmental laws related to the company's hazardous waste management. Wal-Mart and the EPA have also entered into a separate agreement which provides that the company will not be disqualified from participating in federal government programs. The company said the payments will not impact the company's results of operations for the second quarter of 2013 and will not be material to the company's financial position.

    Access a release from EPA with additional information (click here). Access more information about the actions against Wal-Mart (click here). Access a lengthy statement from Wal-Mart with links to more about the company's environmental compliance program and sustainability efforts (click here). [#Haz, #Toxics]

 

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Groups Launch "Our Forests Aren't Fuel" Campaign

May 28: The Natural Resources Defense Council (NRDC) and Dogwood Alliance have launched a campaign -- "Our Forests Aren't Fuel" -- to raise awareness of what they say is an alarming and rapidly-growing practice of logging forests and burning the trees as fuel to generate electricity. The groups indicated that Southern forests are being burned for electricity, and the campaign aims to put an end to it.

    At the forefront of burning trees logged from Southern forests for electricity are some of Europe's largest utility companies, including Drax, Electrobel and RWE.  Rising demand by these companies has resulted in the rapid expansion of wood pellet exports from the Southern U.S. The American South is now the largest exporter of wood pellets in the world.  Recent analyses indicate there are twenty-four pellet facilities currently operating in the Southeast, and sixteen additional plants planned for construction in the near-term. Market analysts project that annual exports of wood pellets from the South will more than triple from 1.3 million tons in 2012 to nearly 6 million tons by 2015.  All of the South's largest domestic utilities, including Dominion Resources and Duke Energy, are also beginning to burn wood with plans for expansion in the future. 

    Debbie Hammel, Senior Resource Specialist with NRDC said, "With the advancement of clean, renewable energy alternatives, the growing practice of burning trees for electricity is a major step in the wrong direction. Our Forests Aren't Fuel lets the public know about the extent of this ecological devastation and calls on utilities to end the practice. It's an even dirtier form of energy production than burning fossil fuels, it destroys valuable southern ecosystems, and it isn't necessary." Danna Smith, Executive Director of Dogwood Alliance said, "This rapidly expanding trend of burning trees for energy will both accelerate climate change and destroy forests. Southern forests not only protect us from climate change, but protect our drinking water, provide habitat for wildlife and contribute to our quality of life.  We need these companies to stop burning trees for electricity and embrace a clean energy future that helps to protect, rather than destroy forests."

    The groups indicate energy from burning trees – or biomass – has been widely promoted as a form of renewable energy along with technologies like solar, wind, and geothermal.  Over the past two years, however, mounting scientific evidence has discredited biomass from forests as a clean, renewable fuel. Recent scientific reports document that burning whole trees to produce electricity actually increases greenhouse gas pollution in the near-term compared with fossil fuels and emits higher levels of multiple air pollutants. This fact, combined with the negative impacts to water resources and wildlife associated with industrial logging have discredited whole trees as a clean fuel source. But current European and U.S. renewable energy policies and subsidies encourage the burning of trees as a "renewable" source of energy for power generation, helping to facilitate the rapid increase in demand for trees from Southern forests to burn in power plants.

    Consequently, a new industry is spawning in the South. Companies like Maryland-based Enviva, the South's largest pellet manufacturer, are grinding whole trees into wood pellets to be burned in power stations in Europe while also supplying wood to domestic utilities like Dominion Resources. New evidence that Enviva may be relying at least in part on the harvesting of wetland forests has recently emerged. Georgia Biomass, a wholly-owned subsidiary of the German utility RWE Innogy, is also manufacturing millions of tons of wood pellets annually to be burned in European biomass facilities. The campaign organizers reveal the scope and scale of the growing biomass industry through a series of case studies on the campaign website that include wood pellet manufacturers, domestic utilities, and European utilities.

    Access a release from NRDC (click here). Access the Campaign website for more information and full case studies for companies driving the biomass industry (click here). [#Energy/Biomass]

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Senate ENR Committee Forum On NatGas Shale Development

May 23: The Senate Energy & Natural Resources (ENR) Committee, Chaired by Senator Ron Wyden (D-OR), with Ranking Member Lisa Murkowski (R-AK), held its second NatGas forum -- this one focused on Shale Development: Best Practices and Environmental Concerns. Witnesses at the forum included representatives from: XTO Energy Inc.; Noble Energy, Inc.; Anadarko; EQT Corporation; Environmental Defense Fund; Natural Resources Defense Council; Sierra Club; Texas Railroad Commission; Bureau of Land Management; Baker Hughes; Halliburton; West Virginia Environmental Council; Interstate Oil and Gas Compact Commission; Nebraska Oil and Gas Conservation Commission; and U.S. Department of the Interior, Bureau of Land Management. Both Senators Wyden and Murkowski delivered opening statements.

 

    In an release, Chairman Wyden encouraged industry leaders, environmentalists and members on both sides of the aisle to build on a commitment made at the meeting to work collaboratively to improve domestic production of natural gas. He said, "Today, we heard from leaders in the natural gas industry, from the environmental community and committee members on both sides of the aisle, all of whom agree we must continue to work, using a bipartisan approach, to address the concerns associated with increased natural gas production. There are substantial environmental questions here, but there's no difference of opinion, at least in the Senate, that this is something where we need to try to find common ground. I think there's a real opportunity for progress."

   

    Chairman Wyden pointed to Texas, where less than half of a percent of shale gas is burned off, or flared, as a potential model for other areas, where up to 30 percent of gas is flared. In addition to addressing fracking disclosure and flaring, Wyden emphasized the importance of finding the best practices to limit methane emissions and find ways to better manage water resources in areas where development is taking place. Wyden has pledged to continue discussions with colleagues and stakeholders to find ways to incorporate and advance ideas and suggestions that surfaced in the roundtables.

    Senator Murkowski said, ". . .the shale gas boom has clearly been a game changer for our country. It's allowed us to access an abundant, affordable and clean source of domestic energy. The potential benefits to our economy are clear and we should do everything we can to make sure we don't mess it up. I support strong regulation of gas production, but I continue to believe that the states are best positioned to address and respond to environmental and other community concerns within their borders. This resource is too important to our future economic development and energy security to move forward in any other way."    

    The meeting completed the committee's series of three natural gas roundtables, which allowed a broad group of stakeholders to exchange ideas in a less formal setting on the many issues facing the country as a result of increased natural gas production, including pipeline infrastructure and transportation, domestic supply and exports and best practices and environmental concerns in the extraction of natural gas from shale.

    Access the NatGas Forum3 website for links to all testimony, opening statements and a webcast (click here). Access a release on the forum from Sen. Wyden (click here). Access a release on the hearing from Sen. Murkowski (click here). Access the NatGas Forum1 website for links to all testimony, opening statements and a webcast (click here). Access the NatGas Forum2 website for links to all testimony, opening statements and a webcast (click here).  [#Energy/NatGas, #Energy/LNG]

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House GOP Approves Keystone XL Pipeline Bill (HR3)

May 22: The U.S. House of Representatives passed The Northern Route Approval Act (H.R. 3) by a vote of 241-175. The bill, sponsored by Representative Lee Terry (R-NE) would approve the construction, operation, and maintenance of the Keystone XL pipeline and eliminate the requirement for a Presidential permit. Nineteen Democrats joined 222 Republicans to pass the bill. No Republicans voted against it. Rep. Terry issued a statement saying:

"When the President went to a manufacturing facility to promote his executive order designed to expedite the federal permitting process; he highlighted how significant delays hamper job creation.  So it's timely the House today passed my legislation to approve the Keystone XL Pipeline. Congress wouldn't have acted without all of the bureaucratic tricks and delays holding back this important project. It's been over 1,700 days since the initial permits were filed. That's longer than it took the Greatest Generation to win WWII and longer than it took Lewis and Clark to walk the Louisiana Purchase and back. If signed into law, it's estimated that my legislation will create up to 20,000 new jobs directly related to the construction of the Keystone Pipeline and another 120,000 indirect jobs will be created for companies like the one the President visited last week.

"I came to Congress because I want to make America energy independent with an all-of-the-above energy strategy and end our dependence on oil from OPEC nations whose interests aren't always our interests.  This bill strengthens the relationship with our country's largest trading partner who I believe much rather do business with America rather than with the Chinese.It's taken five years and 15,000 pages of environmental reviews to get to this point.  Despite all of the delays, the President's own State Department has said that there are no significant impacts to the environment for this project.

"Some say that my legislation can't become law because it won't pass the Senate. But earlier this year, the Senate voted with a filibuster-proof majority urging the construction of this important infrastructure project. Senator Reid should listen to the 70 percent of Americans who want cheaper gas prices; energy independence; and, the jobs that will be created when my legislation is signed into law and immediately consider this bill for an up-or-down vote. Our nation of builders needs these jobs. I thank my colleagues for their support today because it's time to build the Keystone XL Pipeline."

    Representative Henry Waxman (D-CA), Ranking Member of the Energy and Commerce Committee, and a strong opponent of the project spoke on the House Floor prior to the vote and said:

"Today, the House Republicans are making the fourth attempt in two years to grant special treatment to TransCanada's Keystone XL tar sands pipeline.  That's what happens when you let the oil companies set the agenda. Rather than tackling the real problems facing American families, we're passing legislation to exempt a foreign company from the rules that every other company in America has to follow.  And of course last week, we voted for the thirty-seventh time to repeal the Affordable Care Act.  We're trampling our rule of law to speed Canada's dirty tar sands oil to the Gulf, where it can be refined and sent to other countries tax-free.  That's great for tar sands developers and refiners, like the Koch brothers and Valero.    

"But this bill will hurt American families.  It won't lower gas prices by a single penny; it may even raise them.  It will lock us into more global warming and risk our farmlands and our water supplies. No wonder Americans are cynical about Congress. I oppose the Keystone XL tar sands pipeline because it will worsen climate change. Keystone XL will lock the United States into decades of dependence on dirtier tar sands crude, reversing the carbon pollution reductions we have been working so hard to accomplish.  Experts tell us that building Keystone XL will triple production of the tar sands.  And that's simply not consistent with any future scenario for avoiding catastrophic climate change. 

"We don't need it.  We have our own sources of oil here in the United States.  And we're using less oil because of our efficiency in new cars that are getting better mileage. I oppose this bill for these reasons.  But even if you support the pipeline, you should oppose this bill. H.R. 3 is an extreme bill.  It grants a regulatory earmark to TransCanada, exempting it from all environmental requirements. It's also unnecessary.  The State Department is carrying out their review of this highly controversial project. H.R. 3 would approve the pipeline by fiat, lock out the public, eliminate the President's authority to balance competing interests, and stop federal agencies from ensuring that if the project does go forward, we do it as safely as possible. The Keystone XL tar sands pipeline is a bad deal for America.  We get all the risks, while the oil companies reap the rewards.  But even if you support it, this bill is harmful and unnecessary.  I urge my colleagues to vote no on H.R. 3."

    Republican Members of the Energy and Commerce (E&C) Committee voiced their strong support for building the Keystone pipeline during the debate on the House floor. They listed a broad range of diverse organizations representing American workers and job creators have lent their support to this commonsense bill. Committee Chairman Fred Upton (R-MI) reminded that similar legislation was needed 40 years ago to achieve construction of the game-changing Trans-Alaska Pipeline. He said, "This is not the first time Congress has debated a pipeline project held captive by federal red tape despite its great potential to create jobs and increase the supply of North American energy. Forty years ago, we faced a very similar situation with the Alaska pipeline. It took an act of Congress to break the bureaucratic impasse, limit the litigation, and achieve the Alaska pipeline's construction, and now we must do the same for Keystone XL. H.R. 3, the Northern Route Approval Act, will end the needless delays and finally allow construction of this landmark jobs and energy infrastructure project."

 

    On March 1, 2013, the Department of State (DOS) posted a copy of the Environmental Resources Management (ERM) contract and organizational conflicts of interest disclosures. March 8, 2013, U.S. EPA announced the availability of the Draft SEIS on its website. On April 22, 2013, the comment period on the Draft Supplemental Environmental Impact Statement closed. DOS is now reviewing the comments and will make revisions to the Draft SEIS as appropriate. Next, DOS will seek the views of other agencies identified in Executive Order 13337, and make a determination as to whether issuance of a Presidential Permit for the Keystone XL pipeline would serve the national interest. The Department intends to provide an additional opportunity for the public to comment during the National Interest Determination (NID) period that will begin with the release the Final SEIS. On May 15, 2013, the U.S. Fish and Wildlife Service issued their Biological Opinion for the proposed Keystone XL pipeline to the Department, which was prepared consistent with the Endangered Species Act.

 

    The National Wildlife Federation (NWF) indicated that more than 1 million comments from Americans requested that the State Department reject Keystone XL.  "Given the anti-environmental makeup of this Congress, the Terry bill was expected to pass by a wide margin, but numbers like these obviously made lawmakers take note.  As NWF president and CEO Larry Schweiger said about the KXL pipeline: "It's the wrong approach to put a foreign energy company ahead of more than 1 million Americans who have expressed concern for our nation's wildlife, energy security and public health." NWF warned, "The risks of Keystone XL are huge; the reward is 35 permanent jobs in exchange for higher gas prices, oiled wildlife and communities, and another step towards climate calamity."

 

    The American Petroleum Institute (API) President and CEO Jack Gerard welcomed the House approval of H.R. 3 and said, "This pipeline is clearly in the national interest and most Americans agree. Thousands of folks have joined pro-KXL rallies across the country, public polls show robust support for the project and bipartisan backing remains strong in Congress. After four comprehensive federal reviews and a Nebraska review, the analysis is unwavering: Keystone XL is environmentally sound, a safe method of acquiring the energy our country needs, and strengthens our ties to an important ally. Denying this pipeline would be another blow to thousands of out-of-work Americans and our nation's energy security. We need the pipeline approved now. The ongoing Keystone XL delay has sent a signal to all Americans that jobs and energy security are not a priority to some in government. However, we have bipartisan leadership on Capitol Hill; we just need leadership from the president to help our fellow citizens get back to work."    

 

    Access a release from Rep. Terry (click here). Access a release and video from Rep. Waxman (click here). Access a release and video from GOP E&C members including a list of supporting groups and Alaska Pipeline comparison (click here). Access the DOS Keystone XL website for complete background and links to documents (click here). Access a release from NWF with links to related information (click here). Access a release from API (click here). Access legislative details for H.R.3 including the roll call vote (click here). [#Energy/KXL]

 

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"Groundbreaking, Bipartisan Agreement" To Modernize TSCA

May 22: U.S. Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA) announced what they called a "groundbreaking, bipartisan agreement" to modernize the Toxic Substances Control Act (TSCA) and ensure the safety of everyday consumer products to better protect American families. The Senators said the legislation would significantly update and improve TSCA, which has proven ineffective and is criticized by both the public health community and industry. The Lautenberg-Vitter legislation would, for the first time, ensure that all chemicals are screened for safety to protect public health and the environment, while also creating an environment where manufacturers can continue to innovate, grow, and create jobs.

    The Lautenberg-Vitter "Chemical Safety Improvement Act of 2013" is co-sponsored by U.S. Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Tom Udall (D-NM), Susan Collins (R-ME), Mary Landrieu (D-LA), Marco Rubio (R-FL), Joe Manchin (D-WV), John Boozman (R-AR), Robert Menendez (D-NJ), and John Hoeven (R-ND).

 

    Under current law, U.S. EPA can call for safety testing only after evidence surfaces demonstrating a chemical may be dangerous. As a result, EPA has only been able to require testing for roughly 200 of the more than 84,000 chemicals currently registered in the United States, and has been able to ban only five dangerous substances since TSCA was first enacted in 1976. These shortfalls led the Government Accountability Office (GAO) to identify TSCA as a "high risk" area of the law in 2009.

    Senator Lautenberg, who first introduced legislation to reform TSCA in 2005 said, "This bipartisan agreement is an historic step toward meaningful reform that protects American families and consumers. Every parent wants to know that the chemicals used in everyday products have been proven safe, but our current chemical laws fail to give parents that peace of mind. Our bipartisan bill would fix the flaws with current law and ensure that chemicals are screened for safety." Senator Vitter, the Ranking Member of the Senate Environment and Public Works (EPW) Committee said, "Our bill strikes the right balance between strengthening consumer confidence in the safety of chemicals, while also promoting innovation and the growth of an important sector of our economy. Chemical manufacturing is a big part of Louisiana's economy and across the country, and the Chemical Safety Improvement Act establishes a program that should provide confidence to the public and consumers, by giving the EPA the tools it needs to make critical determinations while providing a more transparent process. The benefit of such a system is that industry should also have more confidence that the federal system works to facilitate innovation and grow our economy." 

    Richard Denison, Senior Scientist, Environmental Defense Fund (EDF) said, "This bill is both a policy and political breakthrough. It gives EPA vital new tools to identify chemicals of both high and low concern, and to reduce exposure to those that pose risks. And while this bill represents a hard-fought compromise, it opens, at last, a bipartisan path forward to fix our badly outmoded system to ensure the safety of chemicals in everyday use." While supporting the bill, EDF also said, "There are some deficiencies in the legislation. . . The bill contains too few deadlines by which EPA needs to initiate and complete actions. Also, while EPA would be required to consider the heightened vulnerability of some subpopulations (including infants and children), EPA would have only limited means to address disproportionately high chemical exposures experienced by residents in many communities in America."

    Cal Dooley, President and CEO of the American Chemistry Council (ACC) said, "From life-saving medicines, to energy efficient build materials, chemistry is responsible for countless innovations that have transformed society. America's chemical industry is a critical source of economic growth and good-paying jobs across the country. Achieving sound, balanced TSCA reform that enhances public confidence in the safety of chemicals and enables America to remain the world's leading innovator is our top priority. This bipartisan compromise legislation will put safety first, while also promoting innovation, economic growth and job creation -- goals that are critical to our industry, to our nearly 800,000 employees and to the many other industries that rely on the products of chemistry. In particular, we appreciate the tremendous work of Senators Lautenberg and Vitter and their staffs to develop a solution that could garner support from both the environmental community and industry. Through their deep commitment to this issue, we now have a historic legislative opportunity that can be embraced by both sides of the aisle, an accomplishment all too rare in Washington today."

    According to a release from the Senators, in contrast to existing law, the Lautenberg-Vitter "Chemical Safety Improvement Act of 2013" would:

• Require Safety Evaluations for All Chemicals: All active chemicals in commerce must be evaluated for safety and labeled as either "high" or "low" priority chemical based on potential risk to human health and the environment. For high priority chemicals, EPA must conduct further safety evaluations.
• Protect Public Health from Unsafe Chemicals: If a chemical is found to be unsafe, the Environmental Protection Agency (EPA) has the necessary authority to take action. This can range from labeling requirements to the full phase-out or ban of a chemical.
• Prioritize Chemicals for Review: The Environmental Protection Agency will have to transparently assess risk, determine safety, and apply any needed measures to manage risks.
• Screen New Chemicals for Safety: New chemicals entering the market must be screened for safety and the EPA is given the authority to prohibit unsafe chemicals from entering the market.
• Secure Necessary Health and Safety Information: The legislation allows EPA to secure necessary health and safety information from chemical manufacturers, while directing EPA to rely first on existing information to avoid duplicative testing.
• Promote Innovation and Safer Chemistry: This legislation provides clear paths to getting new chemistry on the market and protects trade secrets and intellectual property from disclosure.
• Protect Children and Pregnant Women: The legislation requires EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical-a provision not included in existing law.
• Give States and Municipalities a Say: States and local governments will have the opportunity to provide input on prioritization, safety assessment and the safety determination processes, requiring timely response from EPA, and the bill establishes a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.

    Access a release from the Senators (click here). Access a separate release from ACC (click here). Access a separate release from EDF (click here). [#Toxics]

 

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U.S. Chamber Report Critical Of "Sue and Settle" Process

May 20: A report released by the U.S. Chamber of Commerce entitled, Sue and Settle: Regulating Behind Closed Doors, indicates that the "sue and settle" process, where environmental advocacy groups sue Federal agencies to issue regulations by a specific deadline, is being abused, "resulting in interested parties being shut out of regulatory decisions by key federal agencies, particularly the Environmental Protection Agency" (U.S. EPA). The report identifies at least 60 different occasions between 2009 and 2012 where the EPA chose not to defend itself in lawsuits brought by special interest advocacy groups and in each case agreed to settlements on terms favorable to those groups. The settlements directly resulted in EPA agreeing to propose more than 100 new regulations, many of which would impose compliance costs in the tens of millions and even billions of dollars. The Fish and Wildlife Service (FWS) has also been receptive to sue and settle lawsuits, agreeing to propose adding over 700 new candidates to the Endangered Species list. The "sue and settle" issue has been a major concern of Senate Republicans during the nomination process for the President's nominee of Gina McCarthy to head EPA [See WIMS 5/16/13].

    Bill Kovacs, the Chamber's senior vice president for the Environment, Technology and Regulatory Affairs said, "It is clear that the sue and settle process is increasingly being used as a technique to shape agencies' regulatory agendas, without input from the public or the regulated community. From a new wave of endangered species listings to the EPA's federalization of the Chesapeake Bay cleanup program, to the federal takeover of regional haze programs, this report outlines how recent sue and settle arrangements have been used to serve the ends of a few favored interest groups."

    In a release the Chamber indicates that as a result of the sue and settle process, the agency submits to the binding terms of settlement agreements, using congressionally appropriated funds to achieve the demands of specific outside groups. This process also allows agencies to avoid the normal protections built into the rulemaking process -- review by the Office of Management and Budget and the public, and compliance with executive orders -- as the agency's new obligation is created.

    The Chamber indicates that regulations resulting from sue and settle agreements include the Utility MACT rule, costing up to $9.6 billion annually; the Chesapeake Bay Clean Water Act Rules, costing up to $18 billion; and the various regional haze rules that EPA has imposed on the states, which are estimated to total $2.16 billion in new costs. FWS spent more than 75% of their FY 2011 allocation for endangered species listing and critical habitat designation to take actions required by court orders or settlement agreements resulting from litigation. Kovacs added, "Sue and settle allows agencies to avoid the normal protections built into the rulemaking process, including Congressional oversight and reviews by the public. The most effective solution to sue and settle lies with Congress, and they should pass recently-introduced legislation to address this issue without delay. Our hope is that by shining the light on how this process is abused by special interest groups, we can enact much-needed reforms to protect the integrity of the rulemaking process."

    Representative Doug Collins (R-GA), and Senator Charles Grassley (R-IA), have introduced companion legislation, H.R.1493 & S.714, respectively, to eliminate "sue and settle." The Members issued a joint release on April 11, 2013. Senator Grassley said, "Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process.  And, it's a tremendous burden on job-creating businesses, especially small businesses. This kind of regulatory litigation also adversely affects the ability of the executive branch to engage in sound and principled decision-making. The goal of this bill is to make sure all citizens, especially those directly impacted by a proposed regulation, have a meaningful opportunity to participate in the rulemaking process and help ensure the procedure and process used to create these regulations are made in the open. America's system of lawmaking and judicial review shouldn't be distorted or manipulated."

    Representative Collins said, "The Obama Administration has empowered agencies to subvert the legislative process and manipulate the rulemaking system to achieve their pro-regulation agenda. Strong reforms are needed to protect communities and businesses against burdensome regulations that circumvent the rulemaking process. This legislation sheds light on the regulation through litigation that is crippling small businesses in my district and across the nation. Improving the public participation and transparency protections of the Administrative Procedure Act is vital to preserving the integrity of the rulemaking process."

    As part of the nomination process for Gina McCarthy for EPA Administrator, Senator David Vitter (R-LA) has indicated that among other concessions, EPA has agreed to: ". . . post notices of intent on the EPA website as well as commits to establishing a website to post petitions for rulemaking submitted to the Agency." Additionally, Republicans have requested EPA to: "Give intervenors immediate notice of any initiation of settlement discussions that come from legal actions brought against the Agency."

    Access a release from the Chamber (click here). Access an overview, list of rules, recommendations, executive summary, and the complete 54-page report (click here). Access a release from the Members on the legislation (click here). Access the release, letter and agreements from Sen. Vitter (click here). Access legislative details for S.714 (click here). Access legislative details for H.R.1493 (click here). [#All]

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