Ohio pipeline spill underscores the need for better regulation and oversight

By Andrew Williams

Energy Transfer Partners (ETP), the same company responsible for the Dakota Access Pipeline, just spilled millions of gallons of drilling sludge into an Ohio wetland – but don’t worry, they say everything is “safe.”

Craig Butler, Director of the Ohio Environmental Protection Agency called the company’s response “dismissive,” and “exceptionally disappointing,” and he’s right.

Fortunately, federal and state regulators have stepped up to hold ETP accountable.

The Federal Energy Regulatory Commission ordered ETP to halt plans to continue with other pipeline drilling projects in the area and to double the number of environmental inspectors on its payroll.  And the Ohio EPA fined ETP $400,000 dollars for the damage caused by this spill, damage that OEPA says could be deadly and last for decades.

Still, ETP claims that they “do not believe that there will be any long-term impact to the environment.”  How do they figure that? It is clear that without regulators stepping in to manage the literal muck, the company would not have done the right thing.

Companies routinely argue that spilling is never their objective and thus regulations to prevent spills from happening are unnecessary. This is flawed logic. The objective of a driver speeding down the highway isn’t to get into an accident, it’s to get where they’re going faster. But accidents happen—on the highway and in the oilfield – and it’s exactly why we have traffic laws and environmental standards.  Because many people, and companies, won’t follow the rules unless someone makes them.

This should be a wakeup call about the real risks associated with oil and gas operations. These risks cannot be reduced to zero, but regulation is the only assurance that the American public has that they are protected when something goes wrong.

Of course, not all drivers run red lights, and not all companies are as reckless and destructive as what we see in this instance. Many are mindful of the environmental risks of constructing and operating well sites and pipelines.  Regulations that require more rigorous oversight and environmental enforcement reward the companies that are already doing the right thing, and they hold the bad actors accountable for their mess.

The way ETP handled the situation in Ohio is regretful and it’s a clear indicator for why we cannot allow oil and gas companies to operate with flagrant disregard for our health and our environment.   Strong state and federal regulations and vigilant enforcement of such regulations are our best assurance that disasters like this don’t happen again.

Image source: Ohio EPA

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Red tape and over-reach: That is the Regulatory Accountability Act, in a word – and a graphic

By Richard Denison

Richard Denison, Ph.D.is a Lead Senior Scientist.

I blogged last week about the new-but-not-improved Senate Regulatory Accountability Act (RAA), focusing on how it would reinstate some of the worst flaws of the old Toxic Substances Control Act (TSCA) that were fixed in the bipartisan TSCA reform legislation, the Lautenberg Act, signed into law last June.

Here are a few additional things to note.  This bill is scheduled to be marked up next Wednesday in the Senate Homeland Security and Governmental Affairs Committee (HSGAC).

I noted in my last post that RAA is sweeping in scope, and would affect dozens of federal laws and protections in one fell swoop.  My colleague Martha Roberts has just put up a blog post that illustrates this incredibly broad reach by providing a few tangible examples of protections that would be at risk if RAA were to be enacted.

And talk about red tape:  I’m including below her updated graphic depicting the vast bureaucracy RAA would create that all federal agencies would be forced to navigate (click on the thumbnail to enlarge it).

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California’s cap-and-trade program doesn’t need an overhaul

By Erica Morehouse

(Source: cropped photo from Flickr/ Zoe-Rochelle)

Today Senator Bob Wieckowski, supported by Senate President Pro Tem Kevin de Leon, proposed what amounts to a complete overhaul of California’s cap-and-trade program after 2020 in amendments to SB 775.

Pro Tem de Leon in particular has been a tireless champion of effective climate policies that are benefiting California’s communities and making the state a global leader on climate action. California would not be where it is today without his leadership especially on investments in disadvantaged communities and strong renewable and energy efficiency targets. This particular proposal, however, contains provisions that risk undermining the enormous progress the state has made.

Rather than scrapping the current system and starting over with an unproven approach, the state should build on success, keeping what is working well while strengthening the program by doing more to address local air pollution and environmental justice.

With President Trump seeking to take the country in reverse, California’s leadership is needed now more than ever. We can – and must – forge a post-2020 program that benefits communities in the state while leveraging progress here at home to spur greater ambition globally.

What’s at risk in this bill?

We still need to do a full assessment on the language of the bill, which was amended today on the senate floor, but we know certain key policies are at risk:

  • Setting a hard ceiling on allowance prices, without any provision to ensure that California would meet its climate targets if that price ceiling were exceeded, opens a loophole that could undermine the program’s environmental integrity and California’s climate leadership. While the specific price ceiling envisioned in the bill is high enough that it may not be triggered, it represents an approach that is counter to the signature feature of the cap-and-trade program: the guarantee that California will meet its emission target.
  • This price ceiling also supplants a carefully designed cost-containment system that has operated effectively and works in harmony with California’s environmental goals. For example, this bill would prohibit firms from banking allowances, denying them a key source of flexibility that allows them to reduce emissions at the lowest possible cost over time. The bill would also ban the use of offsets, which help California achieve high integrity, hard-to-reach reductions outside the cap while keeping costs under the cap in-check and extending California’s climate diplomacy.
  • This bill could put California’s existing and future partnerships and linkages at risk by overhauling California’s approach to cap-and-trade and then asking partners to quickly fall in line. International linkages strengthen California’s leadership position and allow the state to leverage its program to spur greater ambition globally. Turning inward now would cede global leadership just when the world needs it most.

Today’s proposal is just one step in the complex legislative process, not a final bill proposal. Decision makers must balance many policy priorities as they navigate how to extend California’s cap-and-trade program. We believe there is plenty of room to adapt and strengthen California’s policy package while hewing to the framework that has served California well in reducing carbon pollution so far.

How California can chart a path to a strong cap-and-trade extension

California’s cap-and-trade program is working to bring carbon pollution down while the economy thrives. Even with this success, we recognize California needs to be doing more to address the very serious air pollution issues in local, environmental justice communities. EDF is committing to working on this with legislative leadership and our partners to ensure that the air is safe for all Californians to breathe wherever they live, while recognizing that climate policy – which affects issues as serious as our access to water – is critical to our continued future.

California needs policies that – in addition to improving local air quality – will continue to build on the successful reductions of GHG emissions; secure national and international partnerships vital to the state’s progress as a climate leader; and continue to support strong economic growth.

Rather than a wholesale change of a program that is meeting its goals, we should preserve what’s working and strengthen the parts that aren’t doing enough by designing and implementing policies that will directly improve air quality, especially in environmental justice communities.

This Senate bill comes as Governor Brown is urging the Legislature to pass an extension through the budget process with a two-thirds vote, and after two proposals introduced into the Assembly on how to extend the cap-and-trade program.

It is important that the Senate has now entered this debate and is recognizing the importance of passing a cap-and-trade extension with a supermajority vote. EDF looks forward to working with Senator Wieckowski, President Pro Tem de Leon, Assembly leaders, the Governor, and other stakeholders as California charts a path to a strong post-2020 climate policy.

With the Trump Administration abandoning its leadership role on climate at home and on the international stage, it is more important than ever that California continues to model successful climate policy that ensures that the state will meet its ambitious carbon pollution reduction targets, while promoting better local air quality and supporting a thriving economy.

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California’s clean-energy leadership continues

By Lauren Navarro

California is a leader, and has earned that title – it is the largest state economy in the U.S. and the sixth-largest economy in the world.  Forward-thinking clean energy policies are the backbone of California’s prosperity, creating jobs and businesses for the state while cutting emissions. While the presidential administration assaults critical environmental protections nationwide, clean energy momentum is California’s leadership is committed and poised to move forward.

Energy policy drives economic growth

Most energy policy is done at the state level, reflecting that energy management is a fundamental concern for local residents and their livelihoods. How we make, move, and use power can create jobs and protect citizens’ rights to clean air and energy choice. The following bills currently in front of the California State Legislature illuminate the state’s path forward:

  • SB 584 (De Leon) – This bill proposes increasing our current Renewable Portfolio Standard (RPS) – a requirement that utilities meet half of sales with clean, renewable energy sources – to 100 percent. While the means are still being determined, the ambitious spirit of 100 percent is clear. As California’s leaders consider how best to reach a 100 percent renewable energy goal, they should consider investing in and developing a variety of clean energy options that can ensure the grid stays clean, balanced, and reliable.
  • SB 356 (Skinner) – This bill increase access to data about the whole energy system. Information makes it easier for businesses to develop and deploy new clean energy technologies and help bring clean-tech jobs to the forefront of our economy. It also ensures the state will have important information about the energy use of its buildings and properties.
  • AB 726 (Holden) – This bill takes advantage of smart meter technologies by requiring utilities to notify customers before their bills get too high, thereby avoiding “unpleasant surprises.” Through this increase in information, customers can become more active participants in their energy usage and reduce their costs.
  • SB 366 (Leyva) – SB 366 helps ensure all our communities are able to take part in the clean energy revolution and reap the benefits of lower electricity costs and cleaner air. Specifically, it clears the way for community solar projects in disadvantaged communities and supports well-paying green-collar jobs through local training programs. Unlocking community solar is a key to helping communities overcome physical and economic barriers (like not owning your home or not being able to afford the upfront costs of solar) to accessing clean energy.
  • AB 1431 (Arambula) – AB 1431 will increase access and participation in energy efficiency, weatherization, and renewable energy programs for low-income, disadvantaged communities. It creates a comprehensive database to track program participation and a working group in which state agencies and stakeholders can exchange views on how to make these programs better and increase participation. This combination of data and dialogue will allow for a comprehensive analysis of all related state clean energy efforts.

In some ways, how we bring these resources onto the grid is as important as the resources themselves.

Big, bold benefits of renewable integration

Not only do renewables create clean-economy benefits, so does renewable integration. In some ways, how we bring these resources onto the grid is as important as the resources themselves. A thoughtful approach to incorporating increasing levels of renewables includes establishing a strong, diverse portfolio of clean energy resources.


California’s clean-energy leadership continues
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Each solution has environmental and economic benefits, and each works hand in hand with the RPS to create a totally clean energy system – functioning like two sides of the same coin. In California, we can and should develop clean technologies that will “back up” renewable generation, like automated demand response, time-of-use rates, and electricity storage, including the use of electric vehicle as batteries.  It also means looking beyond California’s borders and considering how the state can best sell our excess clean energy when we don’t need it, like our abundant midday solar, and buy cheap, clean energy from other states when the sun isn’t shining.

California clean-energy leadership continues

California is working hard to create an economy that runs fully on clean, renewable resources. That’s why our legislators should pursue these innovative policies. We know this action is more important now than ever. And no one is more ready to demonstrate how clean energy policy can be an economic boon than California.

Photo source: iStock/halbergman

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Scott Pruitt wants to end his own Clean Power Plan lawsuit—but can’t set aside EPA’s duty to protect the public from climate pollution

By Martha Roberts

(This post was co-authored by Tomas Carbonell)

Before he became Administrator of the Environmental Protection Agency (EPA), Scott Pruitt was relentless in suing to oppose the Clean Power Plan, America’s first-ever nationwide limits on carbon pollution from power plants.

So relentless, in fact, that as Attorney General of Oklahoma he brought suit four times to block these common sense, cost-effective protections—including litigating to block the proposal, before the Clean Power Plan was even finalized.

Given that history, you’d think that Pruitt would be eager to for the U.S. Court of Appeals for the D.C. Circuit Court to continue the current litigation over the Clean Power Plan, which Pruitt helped initiate when he was Attorney General.

Instead, the Trump Administration launched a full-court press to stop the court’s deliberations in their tracks.

The administration filed a motion on March 28 asking the court to suspend the litigation indefinitely – almost a year after the last briefs were filed in the case, and more than six months after oral argument took place before the full en banc court.

Why the sudden aversion to the court considering the case, after such a long history of litigating?

Perhaps Pruitt was afraid that the court would see the Clean Power Plan for what it is – a common sense and achievable plan, firmly grounded in the law and in science, which responds to the most urgent environmental challenge of our time.

Pruitt repeatedly argues that the reason to repeal the Clean Power Plan is because it is “illegal.” Without a D.C. Circuit opinion, all we have are his own claims on that point – and maybe Pruitt prefers it that way, given his poor record in past legal challenges to common sense EPA safeguards.

Whatever the reason, Pruitt pressed ahead to stop the very same case he was instrumental in creating. Last week, the D.C. Circuit partially granted his request. The court put the Clean Power Plan litigation on hold for 60 days, and asked for more information so it can decide how to handle the case going forward.

EPA has a duty to protect Americans from dangerous climate pollution

While last week’s order is disappointing, it has not changed the fact that EPA has a clear duty to act under our nation’s clean air laws to protect the public from harmful climate pollution. That duty is enshrined in three separate Supreme Court opinions that confirm EPA has the authority and responsibility to address climate pollution under the Clean Air Act.

EPA’s obligation to address climate pollution under the Clean Air Act is a settled question in American law. And EPA’s history of successfully addressing climate pollution from cars and other sources speaks for itself.

The Clean Power Plan itself has a rock solid legal and technical foundation – as recognized by a huge and varied coalition of supporters including former Republican EPA Administrators, the attorneys general of eighteen states, legal experts who helped draft the Clean Air Act, and the nation’s leading experts on the power grid.

As these experts recognize, the Clean Power Plan relies on strategies that are already being deployed successfully across the power sector—continuing and amplifying a transition to low- and zero-carbon energy that is reducing climate-destabilizing pollution while bringing jobs and economic opportunities to communities across the country. America’s clean energy sector is a rapidly growing $200-billion industry that employs 3.3 million Americans.

Regardless of any legal maneuvers, the fundamental truth remains – EPA has a duty to act to protect the public from dangerous climate pollution. Given the clear and present threat that climate change poses to the well-being of communities across America, this duty is urgent.

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There’s nothing modern about overfishing

By Monica Goldberg

A recently-filed bill with the upbeat title “The Modernizing Recreational Fisheries Management Act,” H.R. 2023, would unfortunately do just the opposite.  By gutting one of the most important improvements of modern fisheries law, we believe that this bill would move us backwards to a time of widespread overfishing.

Congress first banned overfishing in 1976, but a provision permitting “optimum” yield above sustainable levels led to widespread declines in fisheries.  Lawmakers eliminated that loophole in 1996 with the Sustainable Fisheries Act (SFA).[1]

A decade later, the Senate Commerce Committee described the results:

“The SFA attempted to address overfishing by capping fish harvests at maximum sustainable yield (MSY) …. However, recent evaluations of stock status have shown that ten years after enactment of the SFA, overfishing is still occurring in a number of fisheries, even those fisheries under a rebuilding plan established early in the SFA implementation process.

“Establishing a scientifically-based total allowable catch (TAC) for each managed fishery was a unanimous recommendation from all of the Council chairs, a recommendation of the Managing Our Nation’s Fisheries Conference II final report, and a recommendation of the U.S. Ocean Commission. Requiring routine adherence to an annual catch limit or TAC is a well-known management approach that has been utilized effectively by several Councils, but failure to adopt this technique more broadly has contributed to continued overfishing.”[2]

Following this advice, the 2007 Magnuson-Stevens Reauthorization Act established three innovations that greatly strengthened the longstanding ban on overfishing:

  1. Putting scientists in the driver’s seat by requiring regulators to respect the overall biological limits established by each regional council’s science and statistical committee;
  2. Requiring TACs or quotas, known as annual catch limits (ACLs), on virtually all managed species; and
  3. Ensuring catch stays below the ACLs.[3]

The results have been striking. 

The National Oceanic and Atmospheric Administration (NOAA) most recently reported that 91% of species are fished at sustainable levels41 have recovered to a healthy population size after having been driven below the overfished level. Ten years after the 2007 reauthorization, we have achieved significant progress.

Despite the demonstrated value of ACL management, some recreational fishermen have contested its use in their portion of the fishery.  H.R. 2023 would amend the MSA to make clear that:

“Recreational fishing and commercial fishing are fundamentally different activities, therefore requiring management approaches adapted to the characteristics of each sector”[4]

and specify that regulators:

“have the authority to use alternative fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulations, which may include extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities.”[5]

It is abundantly clear that (1) recreational and commercial fishing are different undertakings and (2) managers can and do use different methods to regulate them.  But under current law those different approaches play out under the auspices of sustainable quotas that form a backstop against overfishing.  H.R. 2023 would remove those safeguards, exempting every fishery which the Secretary determines is not subject to overfishing.[6]  And since ending overfishing has been the goal of fisheries management for the last 40 years, that category includes 286 stocks –the vast majority.

The bill also would exempt stocks where fishing takes place below the target threshold (i.e., overfishing is not occurring) and there has been no peer-reviewed stock assessment and stock survey in the last five years.  This provision appears redundant, but in any event would be nearly as problematic; for example 30 of the 199 high priority stocks tracked by NOAA were last assessed in 2010 or earlier.  While frequent stock assessments and surveys are valuable, lack of them should not waive fundamental safeguards against overfishing.

Similar to previous bills, H.R. 2023 also includes an exception for so-called “ecosystem component” species, a category defined broadly as to include every “non-target, incidentally harvested stock of fish in a fishery.”[7]  This provision would remove protections for key species like sharks that are caught while fishermen target other species.  Nor does the bill clarify whether the exception covers a species like yellowtail flounder that is bycatch for scallopers but targeted by other fishermen.

The bill contains other problematic provisions,[8] but H.R. 2023’s most striking feature is its wholesale rejection of quota management without any indication of what we would use in its place to prevent overfishing.  This approach, which risks a return to considerable overfishing and accompanying harm to fisheries and the Americans who depend on them, is not one we should take in the name of “modernizing” a very functional fishery management law.

Citations:

[1] Pub. L. No. 104-297, 110 Stat. 3559 (1996).

[2] S. Rep. No. 109-229 at 6 (2006).

[3] 16 U.S.C. §§ 1852(h)(6) (ACLs may not exceed recommendations of SSCs), 1852(a)(15) (fishery management plans must include ACLS and measures to ensure accountability with them).

[4] Sec. 3(a)

[5] Sec. 102(b)

[6] Sec. 105 (establishing new section 302(m)(2)(D))

[7] Secs. 105 (establishing exception and defining “ecosystem component species”).

[8] Precluding fishery management councils from adopting specific management measures, as section 103 would, runs counter to the regionally-based logic of the MSA as a whole.  And putting up roadblocks in front of exempted fishing permits (section 106) would stymie fishermen-driven innovation.

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