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The Week Ahead

EPA Readies For New Input On Climate NSPS; Congress Weighs EPA's Toxics Authorities

Posted: February 3, 2014

EPA is preparing for another public hearing on its pending greenhouse gas rules for power plants, with the upcoming event likely to renew debate on whether the agency adequately peer reviewed the science underlying its proposal requiring new coal-fired plants to install carbon capture and sequestration technology. Lawmakers are holding two hearings to consider whether EPA and other regulators have adequate authority to regulate industrial chemicals.

Power Plant GHG Controls

EPA is continuing its process to gain input from the public on its upcoming greenhouse gas (GHG) rules for power plants. The agency is holding a Feb. 6 meeting in Washington, DC, the latest in a series of meetings, to take comment on its controversial proposal setting new source performance standards (NSPS) for new plants.

The hearing is likely to renew debate over whether EPA has adequately reviewed the scientific underpinnings of its plan to require new coal-fired power plants to install carbon capture and sequestration technologies to comply with its proposed standard -- even though the agency recently rebuffed similar calls from its own science advisors.

The proposal, recently published in the Federal Register, is already drawing formal challenges from Republican lawmakers and states, though such challenges appear unlikely to succeed.

As the power sector continues to grapple with a host of new EPA air, water and waste regulations, the annual Energy, Utility and Environment Conference kicks in off Phoenix Feb. 3 with sessions devoted to the upcoming GHG rules, air quality standards, new source review and compliance strategies the industry can employ.

Two major environmental law and policy events are also likely to consider EPA's pending GHG rules. ALI-CLE and the Environmental Law Institute (ELI) host their annual advanced course in environmental law Feb. 5-7, where a Feb. 6 session on “Clean Air Act Developments and Climate Change” is likely to address the issue. Speakers include former EPA General Counsels Don Elliott and Gary Guzy, Kyle Danish of Van Ness Feldman and Vicki Patton of Environmental Defense Fund. The conference also covers a range of other topics, including pending water quality rules, environmental cases before the Supreme Court and a keynote address by EPA's current General Counsel Avi Garbow.

ELI is also hosting a Feb. 5 seminar on “Key Legal Issues Facing the Administration in 2014: Environment, Energy, and Natural Resources.” Speakers include two top former administration officials -- Scott Fulton, EPA's immediate past general counsel, and Gary Guzy, former deputy director of the White House Council on Environmental Quality. Sheila Slocum Hollis of Duane Morris and William H. Meadows, former president of The Wilderness Society, are also slated to speak. John Cruden, ELI's president and the administration's nominee to lead the Justice Department's environment section, is slated to moderate the event.

In Congress

Congress is holding two hearings this week that will examine EPA oversight of industrial chemicals.

The Senate environment committee's water and wildlife subcommittee is holding a Feb. 4 hearing examining “the safety and security of drinking water supplies following the Central West Virginia drinking water crisis." While the hearing is not slated to consider legislative proposals, testimony from West Virginia and other witnesses appears likely to make the case for at least one bill that has been introduced since the West Virginia spill: a measure sponsored by environment committee Chairman Barbara Boxer (D-CA), along with Sens. Joe Manchin (D-WV) and Jay Rockefeller (D-WV), that would would create a new Safe Drinking Water Act (SDWA) program allowing states to regulate chemical facilities, identify facilities that already present a risk to drinking water and set minimum federal standards for the state programs governing construction, emergency leak detection and emergency response.

“The Subcommittee will review what measures might be necessary to ensure that drinking water sources throughout the country are safe and protected from hazards,” subcommittee Chairman Ben Cardin (D-MD) said in a statement. But legislation on the issue is not expected to advance as House Speaker John Boehner (R-OH) has said he does not believe EPA needs new regulatory authorities to address deficiencies highlighted by the spill.

The House Energy & Commerce environment and the economy subcommittee is holding a Feb. 4 hearing on the adequacy of the Toxic Substances Control Act (TSCA), the latest in a series of hearings the panel is hosting. The upcoming event is slated to focus on TSCA sections 4 and 8, which govern the law's current testing and reporting requirements. The hearing comes as senators have resumed talks on revising a bipartisan TSCA reform bill and House lawmakers are said to be getting close to introducing their version of a TSCA reform bill.

In addition, the House Natural Resource Committee's subcommittee on energy and mineral resources is holding a Feb. 5 oversight hearing entitled “Energy in America: BLM’s Red-Tape Run Around and its Impact on American Energy Production.”

And Politico is hosting a Feb. 6 event to examine “the landscape for energy policy in 2014 and the implications for Congress and the administration.” Speakers include Sens. John Barrasso (R-WY) and Sheldon Whitehouse (D-RI), along with Reps. Joe Barton (R-TX), Diana DeGette (D-CO), John Shimkus (R-IL), Gene Green (D-TX) and John Shimkus (R-IL).

Keystone Pipeline

Just days after the State Department released its long-awaited assessment of the environmental impacts of the proposed Keystone XL pipeline, both sides of the debate are stepping up their advocacy on the issue in the hopes of influencing the outcome of the next phases in the administration's consideration of the issue.

But top administration officials say they plan to continue their thorough review of the project. “What the president's role is now is to protect this process from politics, let the . . . expert agencies and the cabinet secretaries make their assessments, both of the study that was [released Jan. 31] as well as its impact on the national interest. So we'll resolve that over the coming period of time,” White House Chief of Staff Dennis McDonough told CBS' Face The Nation Feb. 2.

While he said the administration wants to insulate the review process, McDonough also reiterated remarks President Obama made last summer vowing to block the project if it were to result in a net increase in greenhouse gas (GHG) emissions. “The president laid out last summer in a speech at Georgetown his standard for what he thinks should govern the decision on Keystone, which is that it should not significantly exacerbate what is a significant climate change crisis we face in this country,” McDonough said. By way of example, McDonough cited recent press coverage on the impact of the climate change on drought in California and other western states, “which is now seeing some pretty serious developments as a result of climate change. So we'll be looking at that.”

Given the continuing review process, it is no surprise that advocates on both sides are intensifying their efforts. TransCanada, the company seeking to build and operate the pipeline, said after the release of the final environmental assessment that officials plan to continue their aggressive advocacy in support of their permit application. "This is still an active process, very much, as we move to the national interest determination. I fully expect that there will be a whole host of processes and questions that we'll have to respond to and participate in," TransCanada CEO Russ Girling told reporters following the report's release.

Environmentalists, meanwhile, are holding a series of demonstrations Feb. 3 that they hope will demonstrate broad public opposition to the plan. “The over 200 vigils taking place in almost every state in the nation on February 3 will send a clear message to the President that we trust he will do the right thing and reject the Keystone XL tar sands pipeline,” Susan Casey-Lefkowitz, director of international programs for the Natural Resources Defense Council (NRDC) said in a Feb. 2 blog post.

The environmentalists' continued opposition comes after the department's long-awaited environmental analysis, released Jan. 31, generally reiterated past findings that the project is unlikely to pose significant environmental harms, though advocates have been bolstered by revised findings showing the project could result in increased GHG emissions.

Such optimism may be short-lived as advocates have fared poorly in past efforts to block such cross-border pipelines. And despite what they see as the silver lining in the analysis, environmentalists are also preparing a series of new attacks in an effort to block the project.

Regardless of the final outcome, opposition to the pipeline has been a boon to environmentalists' advocacy. A recent report in the New York Times noted that “although some critics say the environmental movement has made a strategic error by focusing so much energy on the pipeline, no one disputes that the issue has helped a new breed of environmental organizations build a mostly young army eager to donate money and time.”