Category Archives: Keeping Watch on Earth News

NY Times: CA Attorney General Becerra Stops Trump Effort to Turn Back Environmental “Flaring” Regulations

Repost from The New York Times
[Significant quote: “Xavier Becerra, the attorney general of California, who has been perhaps the most aggressive of the state officials suing to challenge Trump administration rollbacks, said he hopes the White House is getting the message.” – RS]

Courts Thwart Administration’s Effort to Rescind Obama-Era Environmental Regulations

By Eric Lipton, October. 6, 2017

WASHINGTON — The rapid-fire push by the Trump administration to wipe out significant chunks of the Obama environmental legacy is running into a not-so-minor complication: Judges keep ruling that the Trump team is violating federal law.

The latest such ruling came late Wednesday, when a federal magistrate judge in Northern California vacated a move by the Department of Interior to delay compliance with rules curbing so-called flaring, a technique oil and gas companies use to burn off leaking methane. Flaring is blamed for contributing to climate change as well as lost tax revenues because the drilling is being done on federal land.

It was the third time since July that the Environmental Protection Agency or the Interior Department has been found to have acted illegally in their rush to roll back environmental rules. And in three other environmental cases, the Trump administration reversed course on its own after lawsuits accusing it of illegal actions were filed by environmental groups and Democratic state attorneys general.

The legal reversals reflect how aggressively Mr. Trump’s critics are challenging the administration’s efforts to rescind regulations enacted during the Obama administration, not only related to the environment, but to immigration, to consumer protection and to other areas.

52 Environmental Rules on the Way Out Under Trump

The list shows dozens of environmental policies that the Trump administration has targeted, often in an effort to ease burdens on the fossil fuel industry.

Click to open graphic

Yet even as the list of failed or at least stalled rollbacks continues to grow, the Trump administration, in many other cases, continues to move ahead with its agenda, often trying a number of different approaches to killing the same rule, so that early setbacks do not necessarily mean anything has been settled.

“The Trump administration is confident in its legal positions and looks forward to arguing — and winning — before the federal judiciary,” Kelly Love, a White House spokeswoman, said in a statement. “This is in stark contrast to the previous administration, which may be the worst win rate before the Supreme Court since the Taylor administration in the early 1850s.”

Still, the string of court rulings and administrative reversals — even some conservative legal scholars agree — is a sign that the Trump administration has been in such a rush to undo the Obama legacy that it is almost inviting legal challenges.

“If I were in this administration, this should be seen as a warning sign,” said Jonathan H. Adler, the director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “The message is clear: Guys, we have a problem here. We are trying to do stuff that is hard and we are not crossing our i’s and t’s.”

Environmentalists see it as proof that Mr. Trump and his team care little about honoring federal law.

“It shows serial lawbreaking and sloppiness by a Trump administration bent on rollbacks,” said John Walke, the director of the clean air project at the Natural Resources Defense Council. “It is sad they have to have their comeuppance in courts rather than doing what was right.”

But this is hardly the first administration to have administrative decisions overturned as a result of court challenges. Environmentalists challenging the moves by George W. Bush to loosen air pollution rules won 27 court rulings during his eight-year tenure.

Trump-Era Environmental Rollbacks Hit a Roadblock: Successful Legal Challenges

As the Trump administration has moved to rollback dozens of Obama-era environmental rules, it has faced intense legal challenges from environmentalists, health advocates and Democratic state attorneys general

Click to open document

And the Obama administration itself was repeatedly challenged by environmentalists. In a recent decision related to two billion tons in coal leases on federal land in the Powder River Basin of Wyoming, for example, the United States Court of Appeals for the 10th Circuit concluded that the Democratic administration’s decision to approve the leases was “arbitrary or capricious” because it did not adequately consider the effect mining all this coal would have on climate change.

But even within the White House, there is awareness that the agencies need to be more careful to avoid further stumbles.

“There are concerns,” Neomi Rao, the head of the Office of Management and Budget division that oversees major federal rules, said in an interview this summer, shortly after she assumed her post. “Agencies want to move quickly to get things done.”

Policy experts say the reversals also underscore the fact that crucial positions within the E.P.A. and the Interior Department remain unfilled, and that a lack of trust exists between political appointees and career staff members.

“The career people at E.P.A. and D.O.J. are top-notch lawyers,” said Richard J. Lazarus, an environmental law professor at Harvard University. “But you have political people come in, and they don’t trust them at all and try to do it without them.”

Xavier Becerra, the attorney general of California, who has been perhaps the most aggressive of the state officials suing to challenge Trump administration rollbacks, said he hopes the White House is getting the message.

“No man, no woman is above the law,” Mr. Becerra said in an interview, shortly after the California magistrate judge ruled that the Interior Department had illegally postponed the enforcement of the methane flaring rule. “You have to follow the rule of law. It makes no difference if you are in the White House or not.”

Each of the rules at the center of these legal challenges has major public implications.

The Department of Interior methane rule reinstated by a federal court on Wednesday will annually eliminate the equivalent of greenhouse gas emissions from about 950,000 vehicles, according to an Obama administration estimate, while also generating millions of dollars in extra federal revenues because oil and gas companies right now do not pay royalties on methane they flare off in giant torches that light the sky.

But the Interior Department, under new leadership, argued that these environmental benefits were not worth the costs.

“Small independent oil and gas producers in states like North Dakota, Colorado and New Mexico, which account for a substantial portion of our nation’s energy wealth, could be hit the hardest,” Katharine MacGregor, a senior Interior Department official, said in a statement this spring.

The federal court judges were not impressed by the legal arguments the Interior Department and E.P.A. made as they separately moved to repeal the Obama-era rules related to methane, which is considered a major factor in climate change.

Efforts by Scott Pruitt, the E.P.A. administrator, to postpone his agency’s methane rule were “unlawful,” “arbitrary” and “capricious,” a three-judge panel said in July.

Scott Pruitt, the administrator of the Environmental Protection Agency, on Tuesday in San Juan, P.R.  |  Credit Doug Mills/The New York Times

“Agencies obviously have broad discretion to reconsider a regulation at any time,” the judges ruled. “To do so, however, they must comply with the Administrative Procedure Act (APA), including its requirements for notice and comment.”

There are signs that the Trump administration is hearing this message. As in three other recent cases, the administration has given up efforts to roll back rules after lawsuits were filed to challenge them even before any judges had ruled on the merits of the arguments.

Those reversals involve rules intended to reduce asthma-causing ozone pollutiontoxic mercury contamination in water supplies and a requirement that state transportation departments monitor greenhouse gas emission levels on national highways and set targets for reducing them.

Kyle Danish, who represents oil and gas companies and electric utilities for the law firm Van Ness Feldman in Washington, said the administration is learning an important lesson: even rolling back regulations involves bureaucracy.

“There’s an irony here that an administration that is upset about the administrative state is going to need multiple rules just to change the rules. But that’s the reality,” he said.

Not everyone is concerned by the court setbacks. Matt Letourneau, a spokesman for the U.S. Chamber of Commerce, called them “relatively minor blips in a much larger, longer-term effort,” and he noted that the Department of Energy has won recent cases against environmental groups related to the transport of liquefied natural gas.

Even with these setbacks, the list of environmental rules that have been delayed or reversed is considerable, including reversing freezes on new federal coal leases, offshore drilling in the Atlantic and Arctic Oceans and lifting mining restrictions in Bristol Bay, Alaska.

And just because courts are ruling against the Trump administration, it does not mean the fights are over.

On Thursday, for example, the day after the court overturned its effort to delay the flaring rule, the Interior Department posted a new notice in the Federal Register indicating its intent to delay the date again, until January 2019. This time, though, the agency is inviting public comments on the delay.

But there is no doubt the legal challenges are slowing down the march to roll back the Obama legacy. And it could complicate other even higher profile pushes to repeal rules, like the Clean Power Plan — intended to reduce carbon dioxide emissions from electric power plants, a move that will generate another wave of legal challenges that will build off arguments made in recent cases.

Mr. Lazarus said some problems might be alleviated once Mr. Trump nominates and the Senate confirms more high-level appointees, who have more experience in handing complicated legal steps needed to rollback rules.

But filling these jobs has been slow.

“There are a lot of fabulous Republican lawyers out there,” he said, “and a lot of them don’t want to be tainted by this administration.”

    Sorting Out Air Quality Regulations After Cap-And-Trade’s Renewal

    Repost from Bay Area Monitor – Bay Area League of Women Voters

    Sorting Out Air Quality Regulations After Cap-And-Trade’s Renewal

    By Leslie Stewart, October-November edition
    Communities for a Better Environment’s Andrés Soto (in red shirt) speaks at the Bay Area Air Quality Management District’s board of directors meeting on September 20. A large number of stakeholders attended to participate in a lively discussion about emissions regulation. | Photo by Alec MacDonald.

    Now that the dust is settling from the legislative tumult surrounding renewal of California’s cap-and-trade program, participants are taking stock of the changed landscape for air quality regulation, both statewide and regionally. Legislation passed this summer sets a more ambitious goal for greenhouse gas reductions through cap-and-trade, while also shifting some duties for regional air districts. Under the new laws, these local agencies will see a reduced role in greenhouse gas regulation, but an added responsibility for implementing a statewide community-focused air quality monitoring and enforcement program.

    The cap-and-trade program is a complicated balancing act between protecting the environment — specifically by reducing greenhouse gas emissions — and retaining industries that contribute to the state’s economic base. As the limit on permitted greenhouse gas emissions decreases (the “cap”), businesses which exceed the limit must obtain allowances (the “trade”), either through state auctions or from other businesses which are under the cap and therefore have extra allowances. The state opted to give some allowances away for free, initially to ease adoption by industries and utilities, and now to reduce the financial burden on companies which may otherwise decide to relocate.

    Passed in July, Assembly Bill 398 (E. Garcia) extended cap-and-trade to 2030 from the program’s original sunset year of 2020. This created more certainty for industry, which was increasingly reluctant to pay for allowances, fearing these might lose value if the program ended soon. The bill also raised the bar for the state’s Air Resources Board. The agency’s goal for 2020 has been to decrease greenhouse gas emissions down to 1990 levels; AB 398 adds a target for 2030, requiring a 40 percent reduction below 1990 levels. Stanley Young, ARB’s director of communications, noted that “the cap has decreased by two to three percent over the previous years of the program, and will drop by four percent by 2020, but then will need to drop exponentially to achieve this goal.”

    Additionally, it is now up to ARB, rather than regional air districts, to regulate emissions of carbon dioxide from any source covered by cap-and-trade, whether in industry, agriculture, or elsewhere. Many environmental groups and agencies that were generally supportive of cap-and-trade renewal, including the Bay Area Air Quality Management District, opposed this aspect of AB 398. Following its passage, the Air District announced it expected to shelve a proposed regional cap on refinery emissions, Rule 12-16, which environmental groups had been working toward for five years.

    “Victory snatched away at the last minute,” was Andrés Soto’s description of the regional air district restrictions in AB 398. Soto is a community organizer with Communities for a Better Environment, a strong proponent of Rule 12-16. However, his organization is refocusing. Soto noted that “local air districts can’t touch CO₂ reductions, but methane and other gases can still be regulated regionally.” CBE is planning a new campaign to pressure the Air District to cap non-CO₂ refinery emissions at current levels before permitting any new refinery infrastructure projects.

    Meanwhile, Tom Addison of the Air District’s Legislative Affairs division commented, “Given passage of AB 398 and its restrictions on local air districts, we are considering how best to coordinate with ARB on actions on greenhouse gases moving forward. Our climate problems are so large and pressing that it makes sense for everyone to work together to address them.”

    Greenhouse gases are not the only emissions from industry, and often the attempts to curb them get intertwined with grassroots efforts to limit the local impact of other categories of air pollution. However, not everyone agrees with this approach, since greenhouse gases harm the environment on a global level, not a local one. As ARB’s Young asserted, “We have an equally ambitious goal to address toxic air contaminants and criteria air pollutants, but the system works better when you do that separately [from greenhouse gases].”

    That separation was the rationale for AB 398’s companion bill, AB 617 (C. Garcia). The bill requires the state to set up a uniform databank, where data gathered from emission monitoring throughout California will be publicly available. The databank will inform a new ARB strategy to reduce toxic air contaminants and criteria air pollutants, including identifying the most environmentally-burdened communities and locations where additional monitoring is needed.

    When the state identifies those sites, local air districts will be required to set up new monitoring there, and also create community-specific pollution reduction plans. Districts may also require individual facilities to set up monitoring at their fencelines. As Young pointed out, “there has been a technical revolution in air monitoring, so that viable, accurate, and consistent monitoring can be done at the community level.”

    Under AB 617, ARB will coordinate all these efforts through the newly formed Community Air Protection Program. Its director, Karen Magliano, sees the new program as “fundamentally transforming community-based planning, by bringing in the communities themselves at all levels.” She explained that “we want to look at the problem at a granular level — implementation will be a shared responsibility.”

    According to Addison, the Air District is concerned about some aspects of that shared responsibility, especially the financial ones. “We are very supportive of the general philosophy behind AB 617, and some pieces we’re enthusiastic about,” he noted. “For example, AB 617 increases the penalties for strict liability violations. However, there is no additional funding [for districts], and a host of new requirements.” Air District staff subsequently noted that a budget trailer bill signed into law on September 17 contains some AB 617 implementation funding, yet it is unclear whether that funding will be adequate.

    Not all of the responsibilities in AB 617 are brand-new to the Air District. Some fenceline and community monitors — measures which will be required by AB 617 in any state-identified communities — are already in place around several Bay Area facilities, because of industry-community agreements or as compliance with the Air District’s Rule 12-15, passed in 2015. Addison observed that better coordination of data reporting on emissions sources is already happening as well. “More data is always helpful, but we want to have that without being forced to divert resources from other programs,” he explained.

    Designing community emission reduction plans will be a new task for the Air District, and Addison is concerned that the tool is limited. However, he was quick to add, “We are committed to trying to improve public health and working to implement the bill. Cutting emissions for disproportionately impacted communities is something we have long aimed at.”

    Bill Magavern, policy director for the Coalition for Clean Air, is also focused on making the community plans work. “The community action plans rely a lot on implementation by air districts — it’s important that they yield strong measures to help the communities in the areas most impacted by pollution,” he observed. “The concern is not only identifying the problem, but moving quickly to implement solutions.”

    Magavern added another area which may require community watchdogs. AB 617 mandates that regional air districts require facilities to use Best Available Retrofit Technology, starting with those which have gone longest since being permitted. “We need to be sure that districts are actually requiring that equipment be updated, and not just letting them use credits,” Magavern warned. Overall, however, he is “cautiously optimistic that AB 617 will yield significant improvements in air quality — but we need to be actively involved to be sure that actually happens.”

    Leslie Stewart covers air quality and energy for the Monitor.

      Welfare Kings? Study Finds Half of New Oil Production Unprofitable Without Government Handouts

      Repost from DeSmogBlog

      Welfare Kings? Study Finds Half of New Oil Production Unprofitable Without Government Handouts

      By Justin Mikulka • Tuesday, October 3, 2017 – 13:03
      Oil derrick with 'welfare' spelled on Scrabble tiles.
      Oil derrick with ‘welfare’ spelled on Scrabble tiles. [Main image is a derivative of “Creative Commons Oil Rig” by SMelindo, used under CC BY 2.0]
      new study published in the peer-reviewed journal Nature Energy found that 50 percent of new oil production in America would be unprofitable if not for government subsidies. The study, performed by researchers at the Stockholm Environment Institute and Earth Track, Inc., found that, at prices of $50 per barrel, light oil produced by hydraulic fracturing (“fracking”) was heavily dependent on subsidies.

      In fact, forty percent of the Permian basin in Texas would be economically unviable without subsidies, and for the home of Bakken crude production, Williston Basin, that number jumps to 59 percent, according to the researchers.

      In addition, the study highlights what this additional fossil fuel production means for impacts to the climate:

      …continued subsidies for oil investment could produce oil (and associated gas) that, once burned, will yield CO2 emissions equivalent to nearly 1 percent of the remaining global carbon budget for all sectors of all economies.”

      At current oil prices, perhaps the most effective “keep it in the ground” strategy might be to stop subsidizing oil production.

      But what happens with these subsidies when the price of oil is over $100 per barrel, as it was several years ago? The authors of the study report that, under such a scenario, government subsidies are simply “transfer payments” to oil investors. The oil would be profitable without the subsidies, which become, at that point, simply free cash for investors.

      While this study provides valuable insight into how subsidies affect oil production and the climate, it notes that its conclusions are not unique. The authors point out: “As others have found regardless of the oil price, the majority of taxpayer resources provided to the industry end up as company profits.”

      US Taxpayers Subsidizing Oil Exports to China

      Since the U.S. crude oil export ban was lifted in 2016, exports have risen much faster than most purported experts predicted, with volumes recently topping 1.5 million barrels per day. Much of these exports are the heavily subsidized light sweet oils produced by fracking in the oil fields of Texas and North Dakota.

      And while major oil producers such as Harold Hamm, CEO of Continental Resources and major Trump donortestified in Congress that it was unlikely U.S. oil would be exported to China, that has quickly proven to be false.

      Bloomberg recently reported that Wang Pei, an executive for Chinese oil and gas company Sinopec, said, “Our refining system really likes U.S. crude.”

      That appetite for oil in China and other nations like India isn’t shrinking, spurring the U.S. oil and gas industry to ramp up production to export far greater amounts.

      Why are U.S. oil producers so keen to export their oil to other countries? Terry Morrison of Occidental Petroleum recently made the answer clear, saying, “It’s an alternative outlet for your production, i.e. better prices.” Better prices. At this point, American taxpayers are now subsidizing oil production so that oil companies can sell it to other countries like China for higher prices.

      As the Midland Reporter-Telegram notes, “analysts are forecasting Permian Basin crude production will increase between 400,000 and 700,000 barrels per day in the coming years,” with the majority likely for export. However, as the Nature Energy study pointed out, 40 percent of that production is dependent on subsidies making it economically viable in the first place.

      Taxpayer-funded subsidies don’t just incentivize oil production for export. As previously noted on DeSmog, taxpayers are also subsidizing the expansion of ports in Texas to provide access for loading oil onto the largest oil tankers, also destined for foreign shores.

      India just received its first shipment of American oil and as DNA India reported, “Officials here said the U.S. crude supply will help India to keep oil prices low and stable to benefit consumers.” Then, U.S. taxpayers are ponying up money for oil production to benefit foreign consumers. This seems like a bad deal for U.S. taxpayers and a horrible deal for the climate — but another big win for the oil industry.

      Subsidies Impact Everything

      The oil industry, led by its lobbying group the American Petroleum Institute, has long denied that it receives anything akin to a “subsidy.” In January former ExxonMobil CEO and now Secretary of State Rex Tillerson repeated this industry talking point during a Senate confirmation hearing. In response to a question from Sen. Jeanne Shaheen (D-NH), Tillerson said, “I’m not aware of anything the fossil fuel industry gets that I would characterize as a subsidy.”

      Yet this new study notes that subsidies aren’t simply cash being handed to oil companies. Subsidies often come in the form of tax breaks, which is just one of the many ways oil companies receive government handouts.

      Another subsidy of sorts noted in the report relates to the fact that the oil industry isn’t required to have nearly enough insurance to cover accidents like the deadly crude oil train explosion and fire in Lac-Megantic, Quebec. The study notes that “the July 2013 crude oil train explosion in Lac-Megantic, Quebec involved a Class II railroad with only $25 million in liability insurance. Costs of $2 billion or more will likely be shifted to the public.”

      However, some of the main impacts of this ongoing support of the oil industry are the ongoing impacts to the climate, the environment, and public health. Should America be subsidizing oil for India and China, two countries that have crippling air pollution issues? What additional costs will be incurred due to climate change thanks to these subsidies?

      Increased oil and gas production in the U.S. also means increased water consumption, increased contaminated fracking wasteincreased spills, increased oil trains, increased earthquakes, and increased flaring.

      newly released poll from the University of Chicago and The Associated Press-NORC Center for Public Affairs Research found that 61 percent of Americans “think climate change is a problem that the government needs to address.” This latest study points to one major way the government could do that: by making the oil and gas industry pay the true costs of production instead of relying on U.S. taxpayers to insure its profits.