Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

Speaking of Appropriations Riders. . .

Grist mulls over the possibility that Congress might use an appropriations rider to kill EPA authority to regulate GHGs under the mobile source and BACT provisions of the Clean Air Act, in response to Monday's revelation that EPA's endangerment finding had been sent to the White House. You can read the piece here.

[Proviso: I disagree with many of the Grist piece's characterizations of the Mass v. EPA decision; it is not quite as slam-dunk in "requiring" GHG regulation under the CAA as the piece makes it out to be.]

It is certainly true that even Democrats have been making a lot of noise about taking away EPA's Clean Air Act Authority over GHGs as a condition of creating a new climate bill. (You can see this in questioning of Lisa Jackson by the Senate Environment and Public Works committee a few weeks ago, detailed in this post.) But unilaterally getting rid of EPA CAA authority over GHGs without passing a climate bill would be pretty shocking. And I for one believe (hope?) that the White House knows what its doing, and that Congress won't be able to kill EPA authority through an appropriations rider. This can be seen in the way that the White House and EPA have broken the endangerment finding process into digestible bits--making the finding, for instance, but not creating the concomitant regulations of vehicle GHG emissions--and has been feeding those bits slowly to Congress at strategic moments--just before Kerry-Boxer was introduced, just before Ban Ki-moon's visit--to keep it moving along. (For a good overview of how this has been trucking along since last spring, see the "Climate Change" section of Ohio Environmental Law Blog, here.)

GHG Endangerment Finding Sent to White House

Apparently, EPA Administrator Lisa Jackson told Reuters today that she had sent the final version of EPA's endangerment finding for greenhouse gases to the White House on Friday. The Reuters article can be read here. (The proposed version of the finding, released last April, can be read here.)

Other news outlets, including the Wall Street Journal, are reporting the story. But the current version of the finding and the accompanying letter are not yet available on the EPA or White House web sites.

The endangerment finding was made under Section 202 of the Clean Air Act, part of its mobile source (vehicle) provisions, and is the ultimate result of the Supreme Court's 2007 decision in Massachusetts v. EPA. This pertains only to mobile sources, and, by its terms (as proposed in April) will not immediately be followed by regulations governing vehicle emissions of GHGs.

That said, a final endangerment finding will give environmentalists a strong legal case that the EPA must now issue regulations governing vehicle emissions of GHGs. EPA has also signaled that it would have to make a similar endangerment finding and issue regulations for emissions of GHGs from stationary sources, including power plants. Some (though not all) in the environmental community are eager to see EPA action via the PSD provisions of the Act, though industry supporters have warned that such a finding for stationary sources would virtually shut down the economy.

If EPA issues regulations governing vehicle emissions of GHGs, environmental litigators will be able to make a slam-dunk argument that GHG's are regulated by the Clean Air Act, and thus subject to the Act's "best available control technology" (BACT) provisions. (This is an argument they have been advancing for some time in their battle against coal-fired power plants, but is weakened by the fact that no actual regulations of GHGs have been issued under the Act. Three weeks ago, the EPA's Environmental Appeals Board (EAB) issued an order, In the Matter of BP Products North America (EAB, October 16, 2009) in which it explained that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant.")

The White House has 90 days to act, but Administrator Jackson told Reuters that she expects an expedited review. This move will put additional pressure on the Senate to continue to move forward with climate change legislation, and may also help show the world, in advance of next month's climate change negotiations in Copenhagen, that the U.S. is moving forward to regulate greenhouse gases.

More information will be posted as it becomes available.

Update: The Washington Post is reporting the story now, and confirms that the finding has not been released publicly. They obtained a statement from the National Association of Manufacturers that they are concerned that EPA is moving forward before Congress has a chance to pass its own bill (confirming that this may well be designed to place pressure on Congress, since you can be assured that NAM is calling on its connections in the Senate right now.) And they obtained a statement from environmentalists that they think that the Administration is doing this to avoid going to Copenhagen "empty handed." The full article, which reflects some great last-minute reporting by Juliet Eilperin, can be read here.

The Denver Science News Examiner is reporting the story here (and its being reprinted in the Washington D.C. Examiner, so being read for free by D.C. Metro commuters on their way to work this morning.) And BNET is reporting the story, describing the move as "Climate Bill Stimulus."

EPA Agrees to Finally Regulate Emissions from PVC Plants under Settlement with Sierra Club

Environmentalists get timeframe for second set of MACT regulations in two weeks

Earthjustice, Sierra Club, and a coalition of gulf coast community groups announced a settlement today with the EPA in which the agency promised that it will issue regulations governing emissions from PVC manufacturing facilities by 2011. The groups' press release can be read here, and Houston Chronicle coverage of the settlement here. This is the second commitment by EPA in two weeks to issue long-delayed regulations for a source category under the hazardous air pollutants (HAPs) provisions of the Clean Air Act (CAA).

Earthjustice Petitions EPA to Revoke BACT Permit for Failure to Cover GHGs

Earthjustice announced on Tuesday that it filed a petition with EPA on behalf of National Parks Conservation Association (NPCA), Sierra Club, and Northwest Environmental Defense Center, challenging PSD and MACT permits granted to the TransAlta Coal-Fired Power Plant in Centralia, Washington, for failure to adequately control for NOx, mercury, and CO2.

In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency.

Environmentalists React to EPW Action

Although the fate of the Kerry-Boxer climate bill has been made more uncertain by the apparent defection of one of its main sponsors, environmentalists reacted with approval to its passage this morning by the Senate Environment and Public Works Committee. NRDC crafted this message for its President, Frances Beinecke:

Chairman Boxer and her colleagues took an important step forward with today's action. They have worked under difficult circumstances to craft S. 1733 and sought to have full consideration of this important legislation in the Environment and Public Works Committee.

We welcome the announcement yesterday by Senators Kerry, Graham and Lieberman that they are committed to working together to combine the best of S. 1733 with additional provisions to produce a bi-partisan bill that the Senate will pass.

The Sierra Club put this similar message together for its executive director, Carl Pope:

The Sierra Club is pleased that Chairwoman Boxer and the Senate Environment and Public Works Committee reported out the Clean Energy Jobs and American Power Act today. . . . We are distressed that the Republican Senators on the committee were unwilling to even sit down and discuss this important plan for less pollution, more jobs and greater security. Polluters like Oil and Coal are spending tens of millions of dollars to stand in the way of progress. It appears that the Senators who boycotted these meetings have sided with those special interests. Fortunately a bipartisan group of Senators led by John Kerry and Lindsey Graham are working together to find constructive ways to keep this effort moving forward. We look forward to working with that group to finish a bill that will build our clean energy economy. . .

So a little less politic re the GOP boycott in Boxer's committee, but perhaps purposefully obtuse about the emphasis on "clean coal" and provisions for offshore drilling that Graham seeks to include in any bill.

EarthJustice did not join the others in applauding the Kerry-Graham-Lieberman effort. Instead, in this careful message crafted for its president Trip Van Oppen, it (1) concentrates on the symbolism of having a climate bill move forward in the Senate, (2) applauds the fact that Kerry-Boxer does not preempt Clean Air Act applicability to GHG emissions, and (3) signals disapproval (perhaps?) of further incursions by special interests:

Momentum is building toward a transformational shift to a clean energy economy that doesn't rely on burning fossil fuels that are primarily responsible for global warming. . . . We applaud the Environment and Public Works Committee and chairman Boxer for approving legislation that builds upon the Clean Air Act, which has a proven track record of reducing pollution from the dirtiest sources. The Clean Air Act has successfully protected the public and the environment from mercury poisoning and acid rain, and is currently poised to reduce climate pollution from mobile sources that account for up to four percent of U.S. emissions. Coal companies and other special interests are attempting to derail or delay this legislation -- and keep us hooked on fossil fuels as our main source of energy. We are encouraged to see those who are interested in making the U.S. a clean energy leader prevail.

Let's hope that the off-the-record negotiations Kerry, Lieberman, and Graham are undertaking don't result in something drastically different than this vision. Because the last thing we can afford is a climate bill in name only.

Another One Bites the Dust!

Environmentalists chalked up another victory on Monday when investors scrapped plans for the Big Stone II coal plant in South Dakota. MDU Resources group announced that they were not going ahead with their plan for a 500-600 MW coal-fired power plant because they were unable to find an investor to replace the lead developer, which pulled out in September, citing the economy and uncertainty about the cost of climate legislation.

EPA Orders AEP to Test Stability of Ash Piles

The EPA announced yesterday that it is requiring American Electric Power (AEP) to come up with a plan for safety testing of dams holding back coal ash slurry ponds at a disposal site on the Ohio River in West Virginia. The order is part of a nationwide review of the integrity of such dams, which hold back piles of coal ash collected from coal being burned for power at sites throughout the country. According to EPA's press release, EPA officials will oversee the entire safety testing process.

The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.

As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.

After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.

While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”

Senate EPW Committee Questions Chu, Salazar, LaHood, Jackson, and Wellinghoff on Climate Bill

As it happened:

Senator Boxer (D, CA) opens the Q & A session with a request to Secretary Salazar to discuss the urgency of the bill. Secretary Salazar responds with anecdotes on the effect on public lands and national parks, including the almost certain prospect that there will be no glaciers left in Glacier National Park by 2020. Turning to Administrator Jackson, Senator Boxer asks about whether cap and trade is new. Catching the softball, Administrator Jackson describes the salutary effects of the cap and trade method of decreasing SO2 in prior programs under the Clean Air Act (CAA). Boxer then asks Secretary Chu about how important the certainty of incentives is to ensuring investments in renewable energy. Secretary Chu responds that, given the long-term investments required in the energy industry in any technology, the decision makers need to know that their investments will reap rewards for five or six decades into the future.

Senator Inhofe (R, OK), the very grumpy former chairman of the committee, starts by referring to the outrage of the teabaggers. (!) That they are worried about health care, and this "energy tax." He uses his questioning time to, instead of asking questions, refute points in Senator Kerry's presentation made at the beginning of the hearings--including refuting the science behind climate change. "The science is not settled," he says. "Everyone knows its not settled."

Finally turning to Administrator Jackson, he asks unspecified questions about acid rain, the endangerment finding for polar bears, and presumably its consequences. He then asks that each of the presenters address his assertion that the United States gas, oil and coal reserves are now the largest in the world, and what they plan to do to exploit that. He asks that the questions be answered in writing, however, and Senator Boxer asks the presenters that they make those available by COB tomorrow.

Senator Klobuchar (D, MN) takes the mic, asking Secretary Chu to talk about the signal that the bill will send to the private sector for energy investment--which is clearly the overwhelming point Secretary Chu is here to make. He talks about opportunities lost--that Germany has had more success than we have with wind turbines, because they provided sustained funding for the industry. And he talks about "brilliant ideas" popping up in various pilot programs, and Senator Klobuchar finishes his thought for him, that if we don't provided sustained signals for these entrepreneurs, then we will lose their poitential.

Senator Klobuchar also presses Secretary Chu for details on nuclear incentives. Secretary Chu describes this as "the beginning of the start of a new nuclear industry." As for the timeframe for getting a new nuclear power plant up and running, Secretary Chu can only answer "that depends," averting to the role of the Nuclear Energy Regulatory Commission (NERC). "Ideally," he says, "it could be between five and ten years."

Senator Voinovich (R, OH) is up, and this should be good, because he earlier decried EPA's lack of thoroughness in its analysis. Brushing past the fact that the Senate and House bills are extremely similar, and EPA analyzed the differences, Senator Voinovich intones that, nonetheless, "[t]he fact is that you have not done a full analysis, is that correct?" Administrator Jackson admits that it is true, and that it would take four to five weeks to run full models on the Senate bill. The Senator also talks about preemption, noting that, on his read, this legislation would not preempt the use of the CAA to regulate GHGs. Administrator Jackson says that she still believes that there would be no preemption--that the CAA can still be used to mitigate the harm of some GHG emissions, but that what is really needed is economy-wide action through a bill like this.

Turning to Secretary Chu, Senator Voinovich states his concern that we will not have the technology in place to meet the cap and trade goals. Seemingly wanting to meet them through carbon capture and sequestration (CCS) of emissions from coal plants, he notes that it is urgent that we have CCS in place by 2020, especially if we are going to continue to compete with China (which he notes, as many did in the Senators' preliminary statements, is building one or two coal-fired power plants per week.) Senator Chu responds that energy conservation--if "we really think hard about it"--is the most cost-effective way of reducing carbon, that solar and wind power is very promising, and that we need to press hard and act aggressively, but that we can meet the goals.

Next, Senator Specter (D, PA) addresses Administrator Jackson. He notes that a big selling point for people who don't like climate legislation is the idea that the EPA would no longer be able to come in and use the CAA to regulate CO2 or other GHG emissions. Apparently believing that Administrator Jackson is not familiar with basic strategic concepts, he asks whether she would be able to make concessions in this area. Administrator Jackson responds that, despite the benefits of a cap and trade bill, the EPA will still need the authority to, e.g., address localized pollution sinks that may remain (which is a bit confounding, since we are talking about GHGs, which have a global effect.). Senator Specter says, nonetheless, that he would like to see this bill given preemptive force over the CAA in the area of GHG regulation, and that "if there are other things that you want [to see in the bill], let us know about them," because there is a lot of value in certainty. He explains that "we don't want to buy a pig in a poke." Finally, turning to FERC Chairman Wellinghoff, Senator Specter notes that his constituents are very concerned about transmission lines and pipelines, and asks that he come out and hold hearings before making siting decisions.

Senator Sanders (D, VT), averting to Vermont's strides in energy efficiency, asks Secretary Chu about the benefits of a Smart Grid--specifically the cost savings that we can achieve through peak shifting. Secretary Chu responds that *just* peak shifting would achieve $100 billion in savings a year. Senator Sanders then presents a chart to Secretary Chu showing that the most cost-effective way to go forward is through wind and solar--and that nuclear is the most expensive form of new energy. Secretary Chu, seeking good marks but not wanting to just parrot Sanders, responds that energy efficiency is the cheapest way of going about this. Senator Sanders, not satisfied, makes his own point for himself--that wind, solar, and geothermal are the cheapest form of new energy, but complains that everyone on the committee seems only to be talking about nuclear and coal.

Senator Sanders asks Secretary of Transportation LaHood why we don't have the same type of rail systems seen in Europe and Asia. The Secretary responds, promptly and boisterously, that its "lack of investment." That had Truman made the investment in railroads that he did in highways, we would have those rail systems. But "instead we have a state of the art interstate highway system." Then, Senator Sanders rounds out his questioning by playing to his constituency, extracting statements from the Secretary of his intent to invest in transportation links for rural America.

Senator Udall (D, CO) takes the mic, and ask FERC Chairman Wellinghoff about renewable energy. The Chairman replies that it is important that we have a national standard, and that this bill does that. Turning to Secretary Chu, the Senator asks about the importance of natural gas in future energy plans. Secretary Chu notes that they are funding pilot programs for fueling cars with natural gas, and talks about recovering natural gas from shale as a lower carbon option than some of our current fuel sources. (An answer that should dismay environmentalists aware of the devastating effects of oil shale extraction.) Finally, Senator Udall asks about the costs of wind and solar. Secretary Chu says he is optimistic that solar and wind costs are continuing to drop. Finally, he asks Secretary LaHood about the benefits of investing in passenger rail. Secretary LaHood replies, boisterous again, that it would "[t]ake a lot of cars off the road, take a lot of CO2 [out] of the air. .... When someone gets on a train, they're out of their automobile, and the benefits will be enormous." Underscoring his point, he reprises that "I want to be clear on this, we haven't made the investments in America in passenger rail."

Senator Lautenberg (D, NJ) seeks another assurance from Secretary Chu on the achievability of a 20% reduction in GHG emissions, asking if it can't be achieved through energy efficiency alone. Secretary Chu replies that it can be achieved, but that it will involve looking in every corner, and counting carbon offsets such as reforestation. Turning to Secretary LaHood, Senator Lautenberg asks for more specifics about the effects of increased train service on CO2 emissions, and Secretary LaHood promises a more detailed answer on the exact effects in writing. Senator Lautenberg averts, in the end, to the "cost of doing nothing."

Senator Merkley (D, OR) takes his turn, again talking about the extraordinary benefits of energy efficiency, referring to a McKinsey report issued last year. He notes that it is the cheapest way of providing for new energy needs by far, and will actually reduce household bills. So he asks, "Are we underinvesting in energy efficiency in this bill? Do we need to be going further, and actually have a separate standard?" (I can hear the cheering from ACEEE from where I sit.) Secretary Chu answers, point blank, "Yes." But "there are some barriers at work here. ... What we call market failures. Many people don't know what to do, its inconvenient, there's inertia, and there are also finance barriers. Energy efficiency, you can't just say make it happen. You have to be very proactive, because of these market barriers." Senator Merkley says that he would like to work further with the Department of Energy to help break down the barriers, saying that he would really like to see us achieve the 20% reduction by 2020 through energy efficiency alone, a technology "that pays us back." Secretary Chu replies that the Department will be trying to pilot programs over the next year to see if it can bring down costs--presumably, including barriers.

Finally Senator Merkley asks if we should really be pushing electric cars as a way to reduce CO2 emissions. Secretary LaHood cheers for the GM Volt, but none address whether electric cars would really result in net emissions reductions.

Senator Whitehouse (D, RI) takes over, and notes "the fact that every single one of our Republican colleagues has departed ... shows how difficult" the process is going to be. Turning to a specific issue, he urges that "as you look at the nuclear component of our energy portfolio, that you look aggressively at the nuclear waste" and see about converting it into fuel. "One day, we should be burning this nuclear waste as fuel." Secretary Chu says that the Department has started a detailed look at this. He notes that only 1% of the energy content of the uranium dug out of the ground is actually used.

Senator Whitehouse asks Chairman Wellinghoff about dispatch orders for when power plants are turned on and off. "It is my understanding that these dispatch rules do not take the environmental effects into account whatsoever," and says he would like to work with FERC to make sure that those environmental effects are taken into account in the dispatch rule. Finally, turning to Administrator Jackson, Senator Whitehouse states that "the perspective that I have on this is that for many years, corporate polluters have been ducking and dodging on their responsibilities under the CAA" by building smokestacks. "Right now, in Rhode Island, on a bright summer day, the radio today could easily announce that today is a bad air day ... because of what is being rained down on us by these [out-of-state] power plants. . . . As we look at the CAA ... I very strongly believe that it is time that these power plants are held to account ... So I hope that you will stand firm on the CAA."

Senator Cardin (D, MD), bringing up the rear, thanks the panelists for their public service. He seeks to "underscore two points," about energy policy and investment. Transportation represents 30% of our GHGs, and 60-70% of our oil use. He notes that he would like to get public transportation going far beyond passenger rail, and thanks the Chairwoman for doing that with the bill. He then turns to how the panelists use their existing authority--and thanks Administrator Jackson for putting the environment back on the EPA's priority list. Again playing the good cheerleader, he says "We need to get this done. .... [But] be aggressive with the tools that are already available."

A great note on which to end today's hearings.