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The Week Ahead

Lawyers' Groups Weigh Dual Track Climate Rules; House Plans First Hearing On TSCA Bill

Posted: March 10, 2014

Several lawyers' groups are holding a seminar exploring the dual-track system that EPA and California are creating for regulating greenhouse gases. And a key House Republican is holding the first of two hearings on his draft bill reforming the Toxic Substances Control Act. Many lawmakers are weighing in on the climate debate, with Democratic senators planning an all-night event to highlight the need to address climate change while Republicans are questioning the availability of carbon control technologies.

Climate Policy

As EPA continues its effort to craft greenhouse gas (GHG) rules for power plants, it is facing the prospect of creating a dual-track system that may be at odds with the cap-and-trade system that California has adopted to regulate the emissions.

The American Law Institute Continuing Legal Education, together with the Environmental Law Institute and the Emmett Center on Climate Change and the Environment at the UCLA School of Law, is holding a March 14 seminar that will examine the potential for conflict.

California and others states have urged EPA to give states with GHG regimes the option of demonstrating their programs are equivalent to the agency's upcoming GHG rule for existing power plants, an action which would help states and the facilities they regulate achieve compliance without further regulatory burdens.

EPA Administrator Gina McCarthy is lauding existing state programs to cut GHGs -- such as the Northeast climate trading program she helped establish and California's GHG regulations -- as models for the agency's pending rule for existing utilities, vowing to give states the lead on compliance plans for the rule.

But so far, EPA has stopped short of formally indicating it will grant the states' request, leaving room for significant doubts that the upcoming seminar appears likely to examine.

Titled “Navigating Climate Regulation on Dual Tracks: The Promises and Pitfalls of AB32 and the Clean Air Act,” the seminar will highlight recent legal developments in both the federal and state areas and investigate “how this system of dual regulation will unfold. What are the pitfalls, synergies, and uncertainties of climate regulation developing in these two different ways?”

Mary Nichols, chairwoman of the California Air Resources Board, is slated to provide the keynote address.

In other climate policy news, the U.S. Global Change Research Program is holding a March 13 public forum to take comment on the scope of an upcoming interagency report on the public health impacts of climate change.

The report, which is being developed under the president's climate action plan, is likely to further sharpen a focus on global warming-related damages and inform discussions of emissions rules and other strategies to limit and adapt to climate change.

On Capitol Hill

The House Energy and Commerce Committee's environment and the economy subcommittee is holding a March 12 hearing on Chairman John Shimkus' (R-IL) draft bill reforming the Toxic Substances Control Act (TSCA).

The hearing, the first of two Shimkus has said he will hold, will provide a venue for chemical industry officials and environmentalists to discuss the draft language, which the chairman has said he hopes will can win broad bipartisan support to pressure the Senate to act on its pending bill.

But so far, the legislation's prospects appear dim. No Democratic has publicly voiced support for the draft legislation and Rep. Henry Waxman (D-CA), the committee's top Democrat, has called for the measure to be significantly overhauled before he could support it.

Shimkus sought to address some criticisms of the Senate bill, such as limiting some preemption provisions, stripping language some said hindered tort claims, expanding EPA flexibility for prioritizing chemicals for assessment and requiring consideration of vulnerable subpopulations.

The draft House bill, as with the Senate bill, S. 1009 would require EPA to sort existing chemicals into high- and low- priority categories and to render determinations on whether chemicals designated high priority pose an unreasonable risk to human health or the environment, targeting them for further regulatory restrictions.

One issue that is likely to gain particular attention at the hearing is language in the bill requiring the agency to show that any restriction imposed on a chemical “is 'proportional' to the risk involved; the restriction 'will result in net benefits;' is 'cost-effective' compared to alternatives" and that there are "technically and economically feasible alternatives that materially reduce risk to human health or the environment compared to the use proposed to be prohibited."

The Senate is expected to address a similar concern in its bill, with sources indicating that a revised bill slated for introduction in the coming weeks will “decouple” a cost-benefit analysis requirement from the agency's determination of whether the chemical meets the revised bill's "modified unreasonable risk" standard.

Witnesses scheduled to testify on the draft House bill include representatives from Companies for Safer chemicals, the Society of Chemical Manufacturers and Affiliates, Environmental Health Strategy Center, Intel Corporation, Alliance of Automobile Manufacturers, Dow Chemical Company, United Steelworkers, National Chemical Distributors Association and other groups.

Elsewhere on Capitol Hill, dozens of Democratic senators are set to take to the floor of the upper chamber March 10 -- 11 to talk all night about the need to address climate change. The effort is being led by Sen. Sheldon Whitehouse (D-RI), who, together with Senate environment committee Chairman Barbara Boxer (D-CA), earlier this year created a Climate Action Task Force to raise public awareness about GOP opposition to legislation they say could limit climate risks.

Top Democratic leaders are joining the all-nighter, including Senate Majority Leader Harry Reid (NV) and Majority Whip Dick Durbin (IL).

In the House, meanwhile, the House science committee's energy and environment subcommittees are holding a joint March 12 hearing that is expected to highlight the debate over whether carbon capture and sequestration (CCS) technology is “adequately demonstrated” such that EPA can require it's installation under its pending greenhouse gas rules for new coal-fired power plants.

Many agency critics say the technology is not “adequately demonstrated,” as the Clean Air Act requires, so EPA's proposed rule effectively requiring installation of the technology amounts to a prohibition on construction of new coal units -- though EPA and industry groups acknowledge that no new coal plants are currently planned.

The hearing, entitled “Science of Capture and Storage: Understanding EPA’s Carbon Rules,” is slated to include testimony from industry representatives who say the technology is not commercially available, environmentalists who believe it is and EPA's acting air chief Janet McCabe, who in the past has backed CCS as a means of controlling carbon emissions.

The proposed Keystone pipeline is also likely to gain congressional attention. The Senate Foreign Relations Committee is holding a March 13 hearing on whether the pipeline's approval is in the national interest. Supporters and opponents of the planned project are scheduled to testify.

Secretary of State John Kerry is also slated to testify March 13 on the department's fiscal year 2015 budget before the House Foreign Affairs Committee, where he is likely to face questions on the proposed pipeline. Kerry continued his recent campaign in support of climate change actions, telling U.S. embassy personnel in March 7 instructions that they should prioritize climate and environmental actions.

In Court

EPA's Environmental Appeals Board is scheduled to hear oral arguments March 11 in a case testing whether the agency has authority to require operators of hazardous waste combustion units to conduct site-specific risk assessments (SSRAs) that can be used to strengthen emissions limits for mercury and other pollutants when renewing the facilities' existing waste and air permits.

Industry has long sought to eliminate or narrow the agency's risk assessment policy for the hundreds of hazardous waste combustion units that burn waste to produce energy.

The case pending before the EAB, In re: ESSROC Cement Corporation, resumes industry's long-standing effort to overturn or narrow EPA's policy that allows the agency to require facilities to conduct site-specific risk assessments for determining whether current permit limits are adequate for hundreds of hazardous waste combustion units that burn waste to produce energy.

The company alleged in its petition that the agency's requirement that it conduct a new SSRA during its permit renewal process was unlawful because it did not meet the criteria EPA established in a 2005 rule for when additional SSRAs must be conducted for determining whether strict permit conditions are needed. But EPA says the criteria in its 2005 rule are not exclusive and that regulators can require additional assessments if they are needed. In this case, the agency lawyers noted that the company's previous assessment had not considered the effect of mercury depositions from its facility onto a nearby lake, a finding that is authorized by criteria allowing the agency to consider any other factors as may be appropriate.

The oral arguments is proceeding after failed negotiation effortsbetween industry and EPA.

Meanwhile, the U.S. Court of Appeals for the 8th Circuit is set to hear oral arguments March 12 in National Parks Conservation Association et al v. EPA et al., a case in which utility Xcel Energy is appealing a district court's order rejecting its request to intervene in a haze-related deadline suit brought by environmentalists.

A district court judge in Minnesota found Xcel did not have standing to intervene in the suit, which could push EPA to regulate haze from Xcels' Sherco coal power plant, because the suit itself caused no direct harm, a finding the company is challenging in the 8th Circuit.