Seventeen states, including six in the West, have filed suit to contest the Trump administration’s revision of rules for implementing the Endangered Species Act.
In litigation filed Sept. 25 in U.S. District Court for the Northern District of California, attorneys general for the states, the District of Columbia and New York City alleged the administration unlawfully included “economic considerations and quantitative thresholds into the ESA’s science-driven, species-focused analysis.”
In addition, the suit alleged violations in connection with the rule revisions’ limiting “circumstances” under which species can be listed as threatened, eliminating “consideration of species recovery” in delisting processes, and expanding the law’s “expressly narrow exemptions from the requirement to designate critical habitat.” The suit also attacked the revised rules’ limits on when “presently unoccupied critical habitat would be designated, particularly where climate change poses a threat to species habitat.”
California Attorney General Xavier Becerra said, “The only thing we want to see extinct are the beastly policies of the Trump administration putting our ecosystems in critical danger.”
The revised regulations, jointly finalized last month by the Interior and Commerce departments, would drop blanket protections under which the U.S. Fish and Wildlife Service automatically grants species on the threatened list most of the same protections endangered species receive. Instead, FWS would issue “species-specific” rules, similar to the approach the National Marine Fisheries Service takes for ocean fish species on the threatened list.
Also, the revised regulations scaled back criteria under which FWS and NMFS can include areas that are unoccupied by listed species as designated “critical habitat” areas. The regulations say the unoccupied areas can be included only if they are determined to be “essential for the conservation of the species.”
States that joined in the suit include California, Colorado, Nevada, New Mexico, Oregon and Washington.
EPA Raises Sanctions Threat
The EPA on Sept. 24 sent a letter to the California Air Resources Board warning that the state could face loss of highway funds and tighter permitting conditions for industrial facilities unless it does more to comply with ambient air-quality standards.
The letter was another escalation in the conflict between California and the Trump administration touched off by battles over tailpipe greenhouse gas emissions standards.
Meanwhile, on Sept. 26, EPA Administrator Andrew Wheeler sent Gov. Gavin Newsom a separate letter warning that the state is failing to meet Clean Water Act and Safe Drinking Water Act standards. Wheeler gave the state 30 days to file a response “outlining in detail how California intends to address the concerns and violations identified” in the letter.
Sen. Tom Carper (D-Del.), ranking Democrat on the Senate Environment and Public Works Committee, accused President Donald Trump of “governing with a mob boss mentality.” The administration’s actions in connection with California are “an abuse of power by the president, plain and simple,” Carper charged.
Wheeler’s letter said that “California has the worst air quality in the United States, with 82 non-attainment areas and 34 million people living in areas that do not meet national ambient air-quality standards.”
Wheeler called on the state to rework “backlogged and unapprovable” plans to comply with Clean Air Act standards. He warned that EPA could block highway funds and toughen conditions for New Source Review permitting of new and modified industrial facilities.
On Sept. 18, EPA and the National Highway Traffic Safety Administration revoked the state’s authority to set its own tailpipe GHG emissions standards and sales requirements for zero-emission vehicles, including electric cars. California, joined by 23 other states, on Sept. 20 sued the NHTSA in federal court to contest the action.
GAO Issues Grid Cybersecurity Warning
The electric power grid is becoming more vulnerable to cyberattack, but Department of Energy plans for defending against threats fall short, the Government Accountability Office said in a report made public Sept. 25.
The report also noted that FERC standards triggering cybersecurity compliance requirements are based on a faulty analysis that “did not evaluate the potential risk of a coordinated cyberattack on geographically distributed targets.”
GAO called on DOE to rework its cybersecurity strategy to account for higher risks. The report also recommended that FERC reassess cybersecurity standards, re-evaluate risks of coordinated attacks, and consider directing NERC to tighten thresholds triggering compliance requirements.
In a July 15 comment letter, FERC Chairman Neil Chatterjee called the recommendations “constructive,” adding that he has directed commission staff to “develop appropriate next steps to implement them.”
Karen Evans, DOE’s assistant secretary for cybersecurity, energy security and emergency response, said DOE “concurs” with the report’s recommendation to the department.
The report flagged industrial control systems as particularly vulnerable. “The increasing adoption of high-wattage consumer ‘Internet of Things’ devices—smart ‘devices’ connected to the Internet—and the use of the global positioning system to synchronize grid operations are also vulnerabilities,” the report said.
The “most significant cyber threats” to critical infrastructure are posed by nations, especially Russia and China, as well as “criminal groups and terrorists,” the report said, quoting a 2019 assessment by U.S. intelligence agencies. Hackers and disgruntled insiders with authorized access to information systems also pose a threat, GAO added.
An example of a vulnerability, the report noted, is vendors with remote access capabilities in industrial control systems. “Malicious actors could scan a range of potential telephone numbers common to an area or published on a company website to find open modem connections to these devices (referred to as ‘war dialing’),” the report said.
In a related development, leaders of the Senate Energy and Natural Resources Committee on Sept. 26 introduced legislation that would direct FERC to provide utilities with rate incentives and DOE to establish a grant program for upgrading cybersecurity.
The bill was introduced by Sen. Lisa Murkowski (R-Alaska), the committee chair, ranking Democrat Joe Manchin of West Virginia, and Sens. Maria Cantwell (D-Wash.) and Jim Risch (R-Idaho).
Subcommittee Reports Out Nuclear Waste Bill
A House energy subcommittee on Sept. 26 reported out bipartisan legislation to advance the proposed Yucca Mountain nuclear waste repository in Nevada and authorize DOE to develop one or more interim storage sites.
The legislation, HR 2699, moved out of the House Energy and Commerce Committee’s Environment and Climate Change Subcommittee.
HR 2699, sponsored by Rep. Jerry McNerney (D-Calif.), would raise the statutory cap on Yucca Mountain waste storage from 70,000 to 110,000 metric tons. Yucca Mountain is the sole candidate repository for storage of high-level waste from civilian nuclear power plants.
For interim storage, the bill would authorize DOE to contract with an interim storage facility licensed by the Nuclear Regulatory Commission or develop its own. Under the legislation, waste could not be stored at interim storage sites until the NRC decides whether to approve or reject a Yucca Mountain license.
If the NRC licenses Yucca Mountain, the legislation would authorize payments to Nevada of $400 million upon receipt of the first shipment of spent fuel to the repository and $40 million per year until closure.
Yucca Mountain is strongly opposed by Nevada officials.
Panel Reports Out 21 Energy, Water Bills
The Senate Energy and Natural Resources Committee on Sept. 25 reported out 21 energy and water bills, including legislation simplifying permitting for pumped-storage projects at more than one Bureau of Reclamation reservoir.
Bills reported out included:
- S. 1751, Sen. Maria Cantwell’s (D-Wash.) legislation making the Bureau of Reclamation the lead permitting authority over nonfederal pumped-storage projects at more than one bureau reservoir.
- S. 1602, sponsored by Sen. Susan Collins (R-Maine), directing DOE to establish a grid-scale energy storage research program. The bill would direct DOE to carry out up to five demonstration projects by Sept. 30, 2023, “to the maximum extent practicable.”
- S. 2137, the long-delayed energy-efficiency legislation sponsored by Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) to authorize building and industrial energy-efficiency measures, including rebates for efficient motors and transformers, and to set energy and water performance standards for federal buildings.
- S. 2332, sponsored by Cantwell, to establish DOE demonstration programs for storage, microgrids and electric-vehicle charging. The bill would authorize $200 million per year for fiscal years 2020 through 2028 for the programs.
- S. 2333, sponsored by Cantwell, to establish DOE programs to test supply-chain vulnerabilities to cyberattack.
Interior, EPA Money Bill Advances
The Senate Appropriations Committee on Sept. 26 unanimously reported out legislation budgeting slightly more than $9 billion for EPA and $13.72 billion for the Interior Department in fiscal year 2020.
The sums are higher than funding levels for FY 2019, but less than funding in the 2020 Interior and EPA funding bill that the House passed June 25. The House bill would allot $9.53 billion for EPA and $13.79 billion for Interior.
For FY 2019, which ends Sept. 30, EPA is funded at $8.8 billion and Interior at $13 billion.
The Senate on Sept. 26 waved through House-passed legislation to extend 2019 funding levels for federal agencies until Nov. 21, buying time for lawmakers to negotiate an agreement on 2020 funding levels.
Bills to Codify Methane Rule Floated
House Democrats on Sept. 24 pushed legislation to codify a rule to limit methane emissions from new and modified upstream oil and gas production that EPA has proposed to unwind.
The legislation, HR 2711, sponsored by Rep. Diana DeGette (D-Colo.), also would direct the Interior Department to write rules requiring producers to phase in over five years a capture target of 99 percent of gas produced from wells on federal and tribal lands.
In addition, the bill would reinstate a Bureau of Land Management venting-and-flaring rule that Interior revised in 2018, including elimination of leak-detection and repair requirements.
John Putnam, director of environmental programs for Colorado’s Public Health and Environment Department, testified that “stronger federal regulations on [BLM] property will assist states in appropriately regulating this issue.”
The legislation, which likely would have little traction in the Republican-controlled Senate if it passes the House, was spotlighted at a hearing of the House Natural Resources Committee’s Energy and Mineral Resources Subcommittee.
The subcommittee also heard testimony on royalties charged to fossil-energy production on federal lands and on reclamation bonding requirements. The current rate for onshore oil and gas production is 12.5 percent. Ryan Alexander, president of Taxpayers for Common Sense, urged lawmakers to raise the rate to 18.75 percent, equal to the rate for offshore production.
Frank Rusco, director of natural resources and environment for the Government Accountability Office, filed testimony that said “oil and gas bonds do not provide sufficient financial assurance because, among other things, most individual, statewide and nationwide lease bonds are set at regulatory minimum values that have not been adjusted for inflation since the 1950s and 1960s.”
In a report published Sept. 18, GAO recommended that Congress authorize BLM to charge user fees to ensure it can cover the costs of reclaiming “orphaned” wells.
Kathleen Sgamma, testifying for the Western Energy Alliance producers’ group, noted that orphaned wells that have fallen to BLM for reclamation total only 0.3 percent of the 96,199 wells on federal lands.
Sgamma and Republican lawmakers warned against tighter regulations and higher royalty and bond charges on federal oil and gas production.
Rep. Paul Gosar (R-Ariz.), the subcommittee’s ranking Republican, said proposals to boost royalties are part of an effort “to stifle responsible domestic production, right out of the keep-it-in-the-ground playbook.”
Sgamma said in written testimony that “the effect would be to further erode the competitiveness of federal public lands, causing production to shift to non-federal areas where possible, and disadvantaging states like New Mexico, Wyoming and Utah, and many rural communities throughout the West.”
However, Dan Bucks, former director of Montana’s Department of Revenue, said “there really isn’t any evidence” that “royalty rates, regulations, whatever have any effect.” He said that comparative studies his office carried out of state royalties charged in Montana, Wyoming, North Dakota and South Dakota found that “where the rates are highest, there’s more production, because geology and technology, not rates and regulations, determine oil and gas production.”
Energy Products on Tariff Exemption Lists
Energy products, including motors, lighting, and crystalline solar cell and panel types, were among the $250 billion in imported Chinese products receiving reprieves from tariffs imposed last year, according to documents released Sept. 20 by the Office of the U.S. Trade Representative.
The exemptions were based on requests from domestic importers of Chinese goods.
Energy goods on the exemption lists included a broad range of AC and DC motors, armatures, stators and cores, as well as LED lighting fixtures used for horticulture. Also on the lists were crystalline photovoltaic cells made into panels up to 3,061 square centimeters in area and solar panels up to 3,100 square centimeters in area.
The trade representative’s office said talks held by U.S. and Chinese trade negotiators on Sept. 19 and 20 were “productive.”
Further talks are planned next month.
Trump on Sept. 11 delayed from Oct. 1 to Oct. 15 a planned increase from 25 to 30 percent on tariffs charged on $250 billion worth of Chinese goods. Trump called the move a “gesture of good will.”
‘Net-Zero’ Affordability Concerns Raised
Developing “net-zero” buildings that do not emit greenhouse gases could make housing less affordable, lawmakers and witnesses said at a Sept. 20 House subcommittee hearing.
“We have to recognize that these high-performance or green technologies are often more expensive to design, build and maintain. As policymakers, we need to take this into account, especially as we are confronted by declining rates of homeownership, increasing rental prices and high vacancy rates in many American cities,” Rep. Fred Upton (R-Mich.) said at a hearing of the House Energy and Commerce Committee’s Energy Subcommittee, which held a hearing on building-sector efficiency.
Arn McIntyre, a builder appearing at the hearing on behalf of the National Association of Home Builders, said in written testimony that the 2018 update of the model International Energy Conservation Code from the 2006 version would add $4,500 to “over $9,000” to the cost of an average home, depending on climate zone.
He said a net-zero home would need solar photovoltaics, solar water heating, and “highly efficient” windows, lighting and appliances.
His testimony said that 56.6 percent of new and existing homes sold in the fourth quarter of 2018 were affordable for families earning the median U.S. income of $71,900 per year.
McIntyre called for “market-driven” efficiency drivers, including information and tax incentives. “Once you get the market to start to understand that, they know there’s a true payback there, then the market will take over and start driving that,” he said in response to questions from Rep. Jerry McNerney (D-Calif.).
Steve Nadel, executive director of the American Council for an Energy-Efficient Economy, said “a substantial portion” of residential and commercial buildings that will be standing in 2050 have been built already, which makes energy retrofits “critically important.”
Nadel called for expanded commercial benchmarking and retrofit programs.
“Funding should be doubled or tripled” for the Weatherization Assistance Program, he added.
Nadel called on Congress to pass HR 2043, which would direct the Energy Department to establish a home energy retrofit rebate program.
In addition, he called on Congress to reinstate an expired tax credit for homeowners making efficiency improvements, including space and water heating, insulation and windows. The credit expired at the end of 2017.