From an email by Jennifer Kunze, Maryland Program Organizer, Clean Water Action
[See also the Baltimore Sun story, below]
Thu, Oct 19, 2017
Hi everyone,
Just wanted to share the exciting news that the Baltimore zoning code change to prohibit new or expanded crude oil terminals has been officially introduced! You can download the bill here, and here is some coverage of it in the Baltimore Sun and our local NPR station. Taylor and I would be happy to answer any questions about it!
Have a great day,
Jennifer Kunze
Maryland Program Organizer
Clean Water Action Website – Facebook – Twitter
Baltimore council members propose ban on new crude oil facilities
By Ian Duncan, October 16, 2017
Two members of the Baltimore City Council want to ban new crude oil terminals from the city as part of an effort to limit the number of oil trains traveling through the area.
Council members Mary Pat Clarke and Ed Reisinger introduced a proposed change to the city’s zoning laws Monday that would add the oil terminals to a list of banned facilities, ranking them alongside nuclear power plants and incinerators.
“Crude oil shipments are potential hazards to residents and entire neighborhoods,” Reisinger said in a statement.
The council members said they were turning to the zoning code because federal law stops city authorities from directly regulating rail. They hope limiting the terminal capacity will mean there will be less interest in sending oil trains to Baltimore.
Two existing facilities in Baltimore would be allowed to stay but could not expand in any way under the proposal.
For years environmental activists have been sounding the alarm about crude oil that is transported by rail, which can lead to deadly explosions in the case of an accident. In 2013, 47 people died when a train carrying crude oil exploded in Canada.
Precise details of the shipments are scarce, but with the price of oil low, the practice is widely believed to currently be at a low ebb. Rob Doolittle, a spokesman for CSX Transportation, said no oil trains have operated in Baltimore or anywhere else on the company’s network for months. Doolittle also said the company has never run dedicated oil trains through the city, but had moved small amounts of crude on mixed trains.
Clarke said the dip in the market meant it was the right time for the council to take up the proposed restrictions.
“It doesn’t put jobs in jeopardy,” she said. “We don’t know when the marketplace may change. If it does we want to have already capped out the capacity of Baltimore facilities.”
The operator of one of the existing terminals declined to comment; the other did not respond to questions.
Environmental groups say there’s reason to think that if the price of oil picks up again, companies would seek to expand the number of terminals in Baltimore. That’s what happened during the last boom several years ago, but the plans were blocked.
Jennifer Kunze, an organizer with Clean Water Action, said it makes sense to put limits in place now.
“This is really a preventative measure,” she said.
Hartnett-White, as previously reported by DeSmog, is a prominent climate change denier and former Chairman and Commissioner of the Texas Council on Environmental Quality (TCEQ) under then-Texas Governor Rick Perry. Perry now heads up the U.S. Department of Energy and is reported to have advocated for her to run CEQ. She is also an outspoken advocate of hydraulic fracturing (“fracking”) and of exporting oil and gas to the global market.
Long seen as the presumptive front-runner to take the CEQ role, Hartnett-White also worked on President Trump’s presidential campaign on his Economic Advisory Team. And her name was once floated to head up the U.S.Environmental Protection Agency (EPA), as well, currently led by Scott Pruitt.
The head of the CEQ coordinates interagency science, climate, and environmental policy, and is tasked to oversee things like the National Environmental Policy Act (NEPA) review process and agencies’ compliance with that law. The CEQ as an entity itself was actually a creation of NEPA, mandated by that law.
Though CEQ oversees the NEPA process, it remains unclear how seriously Hartnett-White will take the NEPA review process, for decades seen as a bedrock of U.S. environmental regulation since NEPA became law in 1970.
Hartnett-White has long positioned herself as an opponent of environmental and climate actions taken by regulatory agencies. She currently works as a fellow-in-residence at the Texas Public Policy Foundation, which receives fundingfrom ExxonMobil, the Heartland Institute, Koch Industries and others. White also helped head up the Texas Public Policy Foundation’s Fueling Freedom Project, which had among its stated goals to “explain the forgotten moral case for fossil fuels” and “end the regulation of CO2 as a pollutant.”
In September 2016 during campaign season, Politico’s Morning Energy reported that Hartnett-White was “among a small group of people who have Donald Trump’s ear on energy policy.” Hartnett-White and Stephen Moore, who also worked on Trump’s campaign, co-authored a 2016 book titled, Fueling Freedom: Exposing the Mad War on Energy. The book promoted fracking and said the U.S. shale gas bounty could be worth $50 trillion, a statement which has been called false by an energy analyst who crunched the numbers.
The book also claimed that all of the net jobs gained in the U.S. between 2007-2012 can be linked to the fracking revolution, which they wrote has spawned “millions of new jobs in the energy sector.”
But according to the U.S. Bureau of Labor Statistics, during that time period, the number of oil and gas industry workers ranged from a low of about 140,700 jobs in 2007 to a high of 194,700 in 2012.
Not only a fracking promoter, Hartnett-White has also called carbon dioxide in the atmosphere a major benefit for society.
“No matter how many times, the President [Obama], EPA and the media rant about ‘dirty carbon pollution,’ there is no pollution about carbon itself! As a dictionary will tell you, carbon is the chemical basis of all life,” White wrote in September 2015.
“Our flesh, blood and bones are built of carbon. Carbon dioxide (CO2) is the gas of life on this planet, an essential nutrient for plant growth on which human life depends. How craftily our government has masked these fundamental realities and the environmental benefits of fossil fuels!”
In a September 2016 interview with Politico, Hartnett-White advocated for the creation of a ”blue ribbon commission” on climate change, similar to the “red team-blue team” one being floated by Pruitt’s EPA. The commission, Hartnett-White told Politico, would create an “alternative scientific methodology” to the one used by the United Nations’ Intergovernmental Panel on Climate Change (IPCC). She has also stated on the record that the UN has “revealed themselves” as advocating for communism.
Under the presidency of George W. Bush, someone with similarly pro-fossil fuels views also ran CEQ. Before taking over the helm at CEQ in the Bush White House, Philip Cooney served as a lawyer and lobbyist for the American Petroleum Institute (API), which itself has a long track record of funding climate change denial.
Cooney came under a cloud of scandal and resigned when it was revealed that he had heavily edited scientific data showing a link between carbon emissions and global warming in official U.S. governmental reports.
“In handwritten notes on drafts of several reports issued in 2002 and 2003, the official, Philip A. Cooney, removed or adjusted descriptions of climate research that government scientists and their supervisors, including some senior Bush administration officials, had already approved,” reported The New York Times. “In many cases, the changes appeared in the final reports.”
Soon after he resigned, Cooney was hired by ExxonMobil, another key funder of climate change denial.
Harnett-White, too, has some instructive history to look back upon. In 2007, she came under fire for lack of climate and environmental action while chairing TCEQ. This motivated the watchdog group Public Citizen to create a billboard image near the TCEQ headquarters demanding to “Get White Out” and also build a website by the same name.
Public Citizen said she had not done enough to halt issues such as climate change or slow mercury and air pollution. They also stated that she had tried to erode democracy by eliminating the right to comment publicly on a proposed project unless one lived within two miles of its proposed site.
“Chairman White has failed to lead our environmental agency in the right direction. Instead of acting to curb the serious threat from global warming, the TCEQ buried its head in the sand, and determined that global warming impacts would not have to be considered in the contested case hearings for any of the coal plant permits,” Get White Out’s website said of her tenure.
The paper of record in Dallas, Texas, The Dallas Morning News, agreed with this sentiment in a July 2007 editorial written at the end of Harnett-White’s tenure at TCEQ, chiding her track-record in harsh terms.
“She has been an apologist for polluters, consistently siding with business interests instead of protecting public health,” wrote the paper. “Ms. White worked to set a low bar as she lobbied for lax ozone standards and pushed through an inadequate anti-pollution plan.”
In an example perhaps paralleling the Cooney situation most closely, during Harnett-White’s tenure at TCEQ, the agency regularly lowered the statistical data — as compared to federal EPA data — for the amount of alpha radiation traceable in drinking water in places such as Harris County, Texas.
“For years, tests performed by the Texas Department of State Health Services showed the utility provided water that exceeded the EPA legal limit for exposure to alpha radiation,” reported the broadcast news outlet KHOU, based out of Houston, in 2011. “However, the TCEQ would consistently subtract off each test’s margin of error from those results, making the actual testing results appear lower than they actually were.”
In her interview with KHOU, Hartnett-White defended TCEQ‘s actions on this issue during her tenure there.
“As memory serves me, that made incredibly good sense,” said Hartnett-White. “We did not believe the science of health effects justified EPA setting the standard where they did. I have far more trust in the vigor of the science that TCEQ assess, than I do EPA.”
As mandated by the U.S. Constitution’s “advise and consent” clause, Hartnett-White will go through a U.S. Senate confirmation hearing process, during which she will likely face questions about her past record of denying climate change and promoting fossil fuels. The Environmental Working Group says it is dismayed by the choice.
“At least Butch and Sundance had to put some effort into robbing banks and trains,” Ken Cook, EWG‘s president, said in a press statement. “If Hartnett-White joins Administrator Pruitt, polluters will stroll through the front doors of both the EPA and the White House, no questions asked, as the rampant looting of environmental and public health protection policies continues.”
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 otherenvironmental 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.
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
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.
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