Nuclear Industry Recommendations For Obama Clean Power Plan

In comments filed today with the U.S. Environmental Protection Agency, the Nuclear Energy Institute recommends that the agency provide states with maximum flexibility to preserve existing nuclear energy facilities and take care not to worsen distortions in electricity markets that are placing some reactors at risk of premature closure. The Institute made these broad recommendations and more specific recommendations below on the agency's Federal Implementation Plan and model trading rules for the Clean Power Plan. 

Preserving and extending the operation of existing nuclear power plants is essential to achieving meaningful, sustainable carbon reductions from the U.S. electric sector. States should use the tools and techniques available under the Clean Power Plan to preserve nuclear power plants, which produce 63% of America's carbon-free electricity. Given this, as it finalizes the federal plan and the model rules, EPA should strive to achieve two broad objectives:

1)    Provide states flexibility to use the tools and techniques available under the Clean Power Plan to preserve existing nuclear energy capacity and promote cost-effective compliance; and 
2)    Prevent further electricity market distortion that is placing existing reactors at risk, or do not pick technology winners and losers when there is no factual or justifiable basis for doing so.

Specifically, NEI believes EPA should:

 

• Develop and finalize rate-based and mass-based model rules, to provide states maximum possible flexibility based on their particular circumstances.
• Ensure state plans demonstrate reasonable assurance that they will preserve existing carbon-free generating capacity, particularly the nuclear energy capacity on which the Clean Power Plan depends. 
• The mass-based compliance option incorporating existing and new reactors is the only compliance pathway in the Clean Power Plan that preserves existing nuclear power plants. In those states that choose not to cover both new and existing sources, the Clean Power Plan should ensure that states use the tools available under a mass-based approach, including structuring allowance allocation, to preserve existing reactors.
• Treat all forms of zero-carbon generation comparably, with respect to plan implementation elements like the CEIP and credit for allowance trades between mass- and rate-based plans.
• Ensure that state plans provide market signals and incentives for companies to maintain existing nuclear power plants and undertake the capital investment necessary to renew reactor licenses for additional 20-year increments. Absent second license renewals, carbon reductions achieved between 2022 and 2030 may not be sustainable beyond 2030.

States have several options to recognize the carbon-free value of nuclear power plants, and thereby ensure that they continue to produce electricity. Illinois, for example, is considering a low-carbon portfolio standard that would preserve nuclear plants that provide 91% of its carbon-free electricity.  Similarly, New York Gov. Andrew Cuomo has instructed the state Public Service Commission develop a clean energy standard that would achieve the same effect – continued operation of nuclear power plants that provide 60% of the state's carbon-free electricity.  (NEI)

Flint, Michigan Water Crisis

Nearly two years ago, Flint Michigan, which is about 70 miles from the Great Lakes, decided to save money by switching it's water supply from Lake Huron (which they were paying the city of Detroit for), to the Flint River, a notorious tributary that runs through town known to locals for its filth.

The switch was made during a financial state of emergency and was supposed to be temporary while a new state-run supply line to Lake Huron was ready for connection. The project was estimated to take about two years.  Soon after the switch, the water started to look, smell and taste funny. Residents said it often looked dirty.

It was actually iron. The Flint River is highly corrosive: 19 times more so than the Lake Huron supply, according to researchers from Virginia Tech.

According to a class-action lawsuit, the state Department of Environmental Quality wasn't treating the Flint River water with an anti-corrosive agent, in violation of federal law. Therefore, the water was eroding the iron water mains, turning water brown.

But what residents couldn't see was far worse. About half of the service lines to homes in Flint are made of lead and because the water wasn't properly treated, lead began leaching into the water supply, in addition to the iron.

This had been the status quo for nearly two years, and until September, city and state officials told worried residents that everything was fine. Former Flint Mayor Dayne Walling even drank it on local TV to make the point.

But in August, a group of skeptical researchers from Virginia Tech came up and did in-home testing and found elevated levels of lead in the drinking water and made those findings public. State officials insisted their own research was more accurate.

Later it became publicly known that federal law had not been followed. A 2011 study on the Flint River found it would have to be treated with an anti-corrosive agent for it to be considered as a safe source for drinking water.

Adding that agent would have cost about $100 a day, and experts say 90% of the problems with Flint's water would have been avoided.

But Flint residents say they were kept in the dark for 18 months until a local doctor took things into her own hands.  In the pediatric ward of Flint's Hurley Medical Center, Dr. Mona Hanna-Attisha was seeing more and more worried parents fretting over rashes and hair loss.  No one believed state and local officials when they said that this icky brown water was safe.

At first, the state publicly denounced her work, saying she was causing near hysteria. They spent a week attacking her before reversing their narrative and admitting she was right.  They were being told by the DEQ that there wasn't a problem.

In October, the city reverted to using Detroit's Lake Huron water supply, but the damage was done to the lead pipes.  Even with properly treated water flowing in, Virginia Tech researchers still detected lead levels -- albeit lower ones -- in water in Flint homes.

The state is now handing out filters and bottled water.

In 2011, Flint was declared to be in a financial state of emergency, and the state took budgetary control. Therefore, all the decisions made during the water crisis were at the state level, which state officials confirmed, not by the City Council or the mayor.

When the governor appointed an emergency financial manager (in 2011), that person came here ... to simply do one thing and one thing only, and that's cut the budget.

Lead poisoning is irreversible.  It drops your IQ, it affects your behavior, it's been linked to criminality, it has multigenerational impacts. There is no safe level of lead in a child.

A state-appointed task force preliminarily found that fault lies with the state DEQ, and on December 29.  Last week, three months after high lead levels were detected in Flint children, Michigan Governor Rick Snyder declared a state of emergency over the issue.

The U.S. Attorney in Michigan and the federal Environmental Protection Agency are also investigating why the state chose to ignore federal law and go without the anti-corrosive agent, as the lawsuit contends. 

Residents, the former mayor, the current mayor, Congressman Kildee, city workers -- they all blame the governor's office and the state Department of Environmental Quality for what happened to Flint.  (CNN, 1/19/2016)

2015 Hottest Year on Record

The heat record set in 2014 was shattered by the high temperatures in 2015, making last year the hottest year ever recorded, based on data going back to 1880, according to the NASA and the National Oceanic and Atmospheric Administration (NOAA). 

Specifically, the year was 0.23 degrees Fahrenheit hotter than 2014, according to NASA. The measurement recorded by NOAA was slightly worse: 0.29 degrees Fahrenheit hotter than 2014. According to NOAA, 2015 was 1.62 degrees Fahrenheit above the 20th century average.

NASA and NOAA both keep independent global surface temperature datasets, measuring temperatures over both the land and the oceans using thermometers, ocean buoys and ship readings. The datasets do not always agree perfectly, but they showed relatively little disagreement this year.

2015’s record heat — enhanced, especially in later months of the year, by a strong El Niño event that released warmth from the Pacific Ocean — was apparent long before the official declaration of the current record.

Every month in 2015 except for January and April was the hottest of that month on record globally, according to NOAA. In other words, September of 2015 was the hottest September in 136 years, as was October of 2015, November of 2015, and so on.  (Wash Post, 1/20/2016)

Methane Leak In Aliso Canyon California

An enormous amount of  methane gas is currently erupting from an energy facility in Aliso Canyon, California, at a rate of 110,000 pounds per hour. The gas has led to the evacuation 1,700 homes so far. Many residents have already filed lawsuits against the company that owns the facility, the Southern California Gas Company.

Footage taken on December 17 shows a geyser of methane gas spewing from the Earth, visible by a specialized infrared camera operated by an Earthworks ITC-certified thermographer. The Environmental Defense Fund (EDF) released the footage last week.

In early December, the Southern California Gas Company (SCGC) said that plugging the leak, which sprang in mid-October, would take at least three more months. Right now, the single leak accounts for a quarter of the state's entire methane emissions.

SCGC's efforts to stop the flow of gas by pumping fluids directly down the well have not yet been successful, so they have shifted their focus to stopping the leak through a relief well.  They are also exploring other options to stop the leak. The relief well process is on schedule to be completed by late February or late March.

Part of the problem in stopping the leak lies in the base of the well, which sits 8,000 feet underground. Pumping fluids down into the well, usually the normal recourse, just isn’t working. Workers have been ”unable to establish a stable enough column of fluid to keep the force of gas from coming up from the reservoir” The company is now constructing a relief well that will connect to the leaking well, and hopefully provide a way to reduce pressure so the leak can be plugged.

Methane, the main component of natural gas, is 25 times more potent than carbon dioxide when it comes to climate change impact. About one-fourth of the anthropogenic global warming we’re experiencing today is due to methane emissions, according to the Environmental Defense Fund. Leaks like the current one in California, it turns out, are a major contributor.So far, over 150 million pounds of methane have been released by the leak, which connects to an enormous underground containment system. The cause of the leak is still unknown.  Research has also revealed that more than 38 percent of the pipes in Southern California Gas Company’s territory are more than 50 years old, and 16 percent are made from corrosion- and leak-prone materials.

Right now, relief efforts have drilled only 3,800 feet down—less than half of the way to the base of the well. At that rate, the torrent of methane pouring into California won’t be stopped any time soon. (Motherboard, 12/26/2015)

Electric Vehicles Can't Compete With Internal Combustion Engines

The 2015 car-sale data are in: Americans bought a record 17.5 million passenger vehicles in the United States, of which 113,588 — 0.6 percent — were either plug-in hybrids or all-electrics, according to insideevs.com. That was about 10,000 fewer than in 2014.

Automakers have sold 404,176 electrics (EVs) since they hit the market in 2010. That is 0.16 percent of the 250 million-plus U.S. passenger vehicle fleet. Assuming all are still on the road, carmakers must sell 300,000 this year and next to reach 1 million, or 0.3 percent of the fleet, by 2018.

The limiting factor is, was and will be for years the value proposition: Given the cost of advanced batteries, which has not come down as swiftly as EV boosters assumed, most EVs are still very expensive. Gas savings, however, can’t offset the higher purchase price, even when you factor in the $7,500 federal tax credit EV buyers get.  Unless and until that’s solved, the raison d’etre of electric cars, and of federal policies to favor them — making a significant dent in carbon emissions — will be null and void.

Take the 2016 Chevy Volt, a plug-in hybrid that can go 50 miles or so on battery power before a gas motor kicks in. The Volt’s annual fuel cost (gas and electricity) is $250 less than the yearly gas tab for a comparable Mazda 3, according to the Energy Department.  However, the Volt’s list price (with all the options and after the tax credit) is $3,525 more than a similarly equipped Mazda 3’s. Do the math: The Volt’s gas savings will offset the price differential in 14 years.  Two-dollar-a-gallon gas isn’t doing anything to help the EV value proposition.

Tesla? Priced north of $100,000.  Tesla did sell 50,580 vehicles worldwide in 2015.  Tesla owes its survival to subsidies.   This Silicon Valley start-up has gotten $4.9 billion in state and federal support over the past decade, according to a May 30 Los Angeles Times report.   The Times’s figure doesn’t include the tax breaks and other incentives for EV buyers in Norway, whose inhabitants had purchased 8,700 Tesla Model S’s as of October — roughly 10 percent of Model S sales worldwide since its introduction — according to the Norwegian Embassy in Washington.

In September 2012, the Congressional Budget Office estimated that the U.S. government was on course to subsidize EV production and sales to the tune of $7.5 billion through 2019.  We might have gotten more carbon reduction, sooner, if the government had spent that much money on things other than tax breaks for retrofitting coal plants to burn natural gas or nuclear power. (Wash Post, 1/6/2016)

Natural Gas Spot Price in 2015 Lowest Since 1999

Source: U.S. Energy Information Administration, based on Natural Gas Intelligence

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Natural gas spot prices in 2015 at the Henry Hub in Louisiana, a national benchmark, averaged $2.61 per million British thermal unit (MMBtu), the lowest annual average level since 1999. Daily prices fell below $2/MMBtu this year for the first time since 2012. Henry Hub spot prices began the year relatively low and fell throughout 2015, as production and storage inventories hit record levels and fourth-quarter temperatures were much warmer than normal.

Source: U.S. Energy Information Administration, based on Natural Gas Intelligence

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Natural gas prices at key regional trading hubs ended the year lower than their starting point. At northeastern locations, where natural gas transmission infrastructure is often constrained, prices spiked in the early months of 2015, which were colder than normal compared to much of the United States. Prices at the Algonquin Citygate, which serves Boston, and at Transcontinental Pipeline's Zone 6, which serves New York City, began the year much higher than the Henry Hub spot prices in early 2015, but then fell below the national benchmark for much of the rest of the year. The annual average spot price at Henry Hub of $2.61/MMBtu was $1.78/MMBtu, or 41%, lower than the 2014 average.

Despite declining prices, total natural gas production, measured in terms of dry gas volume, averaged an estimated 74.9 billion cubic feet per day (Bcf/d) in 2015, 6.3% greater than in 2014. This increase occurred even as the number of natural gas-directed drilling rigs decreased. As of December 18, there were 168 natural gas-directed rigs in operation, only about half the number of rigs at the beginning of 2015, according to data from Baker Hughes Inc. However, the remaining rigs are among the most productive, and producers have continued to make gains in drilling efficiency.

Source: U.S. Energy Information Administration, Natural Gas Monthly

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Low prices and strong production led to increase use of natural gas for electric power generation, which is projected to be about 26.5 Bcf/d in 2015, exceeding the 24.9 Bcf/d level in 2012. Natural gas surpassed coal as the leading source of electricity generation on a monthly basis for the first time in April, and again in each of the four months from July through October.

In the residential and commercial sectors, which use natural gas primarily for heating, consumption in 2015 declined 6.7% and 4.4%, respectively, from the previous year largely because of warmer weather. Natural gas consumption in the residential and commercial sectors was particularly high in 2014 because of cold temperatures in the first and fourth quarters. Although 2015 had a cold start, temperatures in the fourth quarter were warmer than normal throughout most of the United States.

Source: U.S. Energy Information Administration, Weekly Natural Gas Storage Report

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Growth in production also allowed for strong builds in working natural gas inventory. Inventories surpassed 4,000 Bcf for the first time, reaching 4,009 Bcf in the week ending November 20.

With much of the growth in natural gas production in the Marcellus and Utica shale regions in the Midwest, several major pipeline projects came online in 2015 to transport natural gas from these plays to consumers. In August 2015, the Rockies Express Pipeline (REX) reversal was completed. REX, one of the longest natural gas pipelines in the United States, began service in 2009 to bring Rockies gas eastward. As Marcellus production increased, however, demand in the East for natural gas produced in the Rockies declined. The REX reversal added westbound capacity to enable the transport of natural gas produced in the Marcellus and Utica Shale regions to consuming markets in the Midwest. Several other new pipeline projects began to take natural gas produced in the Marcellus and Utica regions to consumer areas on the East Coast, Midwest, and Gulf Coast area. (DOE-EIA)

Union Gas Receives Approval to Transport Natural Gas from Ohio to Ontario

Union Gas recently received approval from the Ontario Energy Board (OEB) for a 15-year contract to move natural gas from supply basins located near Ohio, into the Union Gas Dawn Hub on the proposed NEXUS Gas Transmission system (NEXUS), starting November, 2017.

Over the past five years, there has been a significant increase in the development and production of natural gas within the Appalachian Basis in Ohio and Pennsylvania. The proposed NEXUS project, which is being developed jointly by Spectra Energy and DTE Energy, will connect Ontario gas consumers to these new and growing supplies and provide Ontario consumers with greater supply diversity, security and cost competitiveness.

The goal is to ensure that Ontario gas consumers, including homes, businesses and industry, have secure access to a diverse supply of competitively-priced natural gas. 

Abundant North American supplies are keeping prices low for natural gas consumers. In fact, the price Union Gas customers pay for natural gas has steadily declined and is lower today than it was 10 years ago. In addition.  (State of Ohio)

Mapping System Highlights Energy Infrastructure

EIA’s mapping system highlights energy infrastructure across the United States

Source: EIA Energy Mapping System

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For the next two weeks (Dec. 21–Dec. 31), Today in Energy will feature a selection of our favorite articles from 2015. Today's article was originally published on Jun. 16, 2015.

EIA's energy mapping system is a data-intensive visual reference tool that includes several map layers defining energy infrastructure components across the United States. Using this series of maps, viewers can see crude oil, petroleum, natural gas, or hydrocarbon gas liquid pipelines, terminals, and ports in their area, as well as high voltage electric transmission lines. The mapping system combines information from many government agencies as well as public and private sources. Understanding infrastructure components is helpful as energy supply and consumption patterns change.

• Crude oil
• Petroleum products
• Natural gas
• Electricity
• Storage

Source: EIA Energy Mapping System

Crude oil pipelines and rail terminal locations are based on publicly available data.

These map layers can be presented over several base layers with geographic, topographic, street, or satellite image detail, as well as with state, county, and congressional district borders.

Each state's map is also included as part of EIA's State Energy Data System. For instance, within North Dakota, viewers can see several components of energy infrastructure (pipelines, rail terminals, transmission lines) in addition to parts of the energy system, such as the locations of natural gas processing plants, coal mines, and wind power plants (including individual turbines).

(DOE-EIA)

Oil Export Ban Lifted

Congress’s bipartisan spending bill lifted the ban on crude oil exports.  The annual appropriations bill included a provision to lift the ban that had been put in place in 1975 to protect consumers from international crises like the OPEC oil embargo.

The deal allowed a five-year renewable energy tax credit extension.

The Democratic leadership traded this ban for a small extension of taxes that support renewable energy. (The Hill, 12/16/2015)

Data On Spent Nuclear Fuel In the USA

Source: U.S. Energy Information Administration, Form GC-859, Nuclear Fuel Data Survey

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The U.S. Energy Information Administration recently released data from its Nuclear Fuel Data Survey on the amount, type, and characteristics of spent nuclear fuel once it is discharged from a reactor. As nuclear electricity generation has continued to increase, the inventory of discharged spent fuel from nuclear reactors has grown steadily since the 1970s.

The latest Nuclear Fuel Data Survey data show that a total of 241,468 fuel assemblies, with an initial loading weight of about 70,000 metric tons of uranium (MTU), were discharged from and stored at 118 commercial nuclear reactors operating in the United States from 1968 through June 2013. Illinois, Pennsylvania, and South Carolina have the highest amount of stored nuclear material, with more than 4,000 MTU in each state.

Nuclear reactors are fueled by fissionable material, most commonly uranium, that has been enriched and formed into fuel rods. These rods are bundled together to form fuel assemblies, which are loaded into the reactor core and irradiated. These assemblies are used in the reactors for multiple cycles, with each cycle typically lasting between 18 and 24 months. After being irradiated, the spent fuel assemblies are highly radioactive and must be properly stored.

There are two storage methods used for spent fuel: spent fuel pools and dry cask storage. The spent-fuel-pool approach involves storing spent fuel assemblies in large pools of water that cool the assemblies and provideshielding from the radiation. Dry cask storage allows spent fuel already cooled in a spent fuel pool for several years to be stored inside a container, called a cask, filled with inert gas. Each cask is surrounded by steel, concrete, or other material to provide shielding from radiation. All spent fuel storage is regulated by the U.S. Nuclear Regulatory Commission.

Approximately two-thirds of total spent nuclear fuel is from pressurized-water reactors, and about one-third is fromboiling-water reactors. In the United States, nearly all spent nuclear fuel is currently stored on-site at commercial nuclear power plants. A very small amount, less than 1%, has been shipped to away-from-reactor, off-site facilities.

(DOE-EIA)

Source: U.S. Energy Information Administration, Form GC-859, Nuclear Fuel Data Survey
Note: Includes discharges stored at commercial sites only

COP-21 Paris Climate Conference

The COP-21 is drawing about 10,000 government representatives to the Le Bourget conference center in a northeastern Parisian suburb, plus 7,000 observers per week and 3,000 journalists.  French President Francois Hollande and President Obama made kick off speeches. 

Key Points On the COP-21 Agenda 

1)      Intended Nationally Determined Contributions (INDCs) – The Paris agreement is anticipated to be a bottom-up treaty, with each country setting goals based on their unique national circumstances. These Intended Nationally Determined Contributions, or INDCs, will form the basis of the country-specific commitments under the new UN climate treaty. It is also expected that periodic review of these commitments will be instituted along with measuring, reporting, and verification to ensure the integrity and ambition of the commitments.  While may seem to be making INDCs, there are many questions as to whether countries will live up to these commitments.  Even the US commitment is being questions by experts as not adding up to the 26-28% reduction.  

2)      Green Climate Fund – Financing issues are among the most controversial in Paris, and they could easily derail any agreement. Many developing country INDCs are conditioned on financial support and technology transfer.  The Green Climate Fund (GCF) was proposed at COP-15 in Copenhagen in 2009, refined in subsequent meetings, and became operational in 2014. GCF aims to provide support to developing country efforts to reduce their GHG emissions and to adapt climate change.  However, this breaks down, it is clear that a significant portion of the expected funds—certainly tens if not hundreds of billions of dollars over many years—would be coming from public sources and would have to be appropriated by Congress. 

3)      Intellectual property – Developing countries have used this provision deftly to justify their attempts to weaken intellectual property rights (IPR) protections, ostensibly to remove the supposed “barriers” to technology transfer raised by IPR. Compulsory licensing and a fund supported by developed countries to buy down IP are two of many proposals being bruited. IPR serve as a fundamental catalyst of innovation, and study after study has shown that it is not a barrier to technology transfer. A weakened IPR regime such as that being proposed above would provide precious little incentive for companies to invest in advanced technologies if after years of research and development and millions or even billions of dollars invested, their inventions could be expropriated outright by companies in developing countries and manufactured and sold around the world at reduced cost. Under such a circumstance, some of the most innovative companies in the developed world would simply abandon the development of advanced energy technologies. 

4)      Technology Transfer – Tied to INDCs and the Green Fund, Technology Transfer is one fundamental issue that could bridge the gap.  It frankly is a better way to move toward a positive goal transforming our energy economy:  engage developing countries with advanced technology transfer to help them grow their economies more efficiently and cleanly.   

5)      Verification – An issue that does not receive the attention it deserves is measuring, reporting, and verification of climate policies. As things stand now, the system of MRV that is likely to come out of Paris will focus not on whether a country meets its emissions goal, but on whether it implements the policies and measures designed to meet its goal. In other words, MRV is more about process than results. MRV will be especially challenging in developing countries. Transparency is a key to open markets and planning, and businesses will be reticent to invest in developing economies without assurances that its investments in emission reduction and offset projects are real and that government activities in support of INDCs have integrity. 

6)      Binding Legal Commitments Or Non-binding Political Agreement – The Paris Agreement will not be a treaty.  The Paris Agreement will be a multilateral international agreement that will include almost every country in the world. Yet some believe that If the outcome of the Paris Conference is to make promises to reduce emissions legally binding, then the Paris Agreement must be submitted to the Senate for approval as a treaty under Article II.  This will continue to be a contentious point of negotiating among parties and one that US Senators will be watching closely.

( (Frank Maisano)

Bill Gates, Mark Zuckerberg & Richard Branson Form Breakthrough Energy Coalition

A group of 28 investors, led by Microsoft Corp. founder Bill Gates, have unveiled an effort to help companies, including developing countries, widely deploy new clean energy technology.

Gates’s effort, dubbed the Breakthrough Energy Coalition, includes big names like Facebook chief Mark Zuckerberg, climate activist Tom Steyer and Virgin Group founder Richard Branson.

Private companies will ultimately develop these energy breakthroughs, but their work will rely on the kind of basic research that only governments can fund.  The group has not commited to any particular funding levels, though it will be the single biggest cooperative research and development partnership in history.  (The Hill, 11/29/2015)

USA & 19 Countries Pledge Increase in Clean Energy Fund

President Obama and 19 world leaders at the United Nations’ climate change conference in Paris committed to double the amount of money they put into clean energy research and development.  The commitment is part of a proposed worldwide pact to fight global warming.

The commitment would put the countries’ funding for low- or zero-carbon technologies like wind power and nuclear energy at about $20 billion in five years, with about half of that amount spent by the United States. Dubbed Mission Innovation, it relies on research and development strategies that have proven successful in the United States.

The increased funding, about 15 percent per year starting in 2017, would rely on Congress for funding.  (The Hill, 11/29/2015)  [Joint Launch Statement]

President Obama (Warren Buffet) Rejects Keystone Pipeline

President Obama on Friday rejected the application to build the Keystone XL Pipeline, ending the seven-year saga over the controversial plan to transport oil sands from Canada to the Gulf Coast. The State Department decided that the Keystone XL pipeline would not serve the national interest of the United States.  President Obama agreed with that decision.

The president believes the pipeline would not do enough to create jobs, would damage American energy security, would undercut the country’s leadership on preventing climate change and would not make a meaningful, long-term contribution to our economy.

Traditional environmental groups might be celebrating a supposed victory, but we suspect that the WARREN BUFFETT EFFECT had a lot to do with this decision.

All three of the Democratic candidates for president opposed the project. Though former Secretary of State Hillary Clinton held off on publicizing her opinion until September, Sen. Bernie Sanders (I-Vt.) and former Maryland Gov. Martin O’Malley have long opposed it. The Republican candidates overwhelmingly favor Keystone.  (The Hill, 11/6/2015)

Court Issues Nationwide Stay of EPA Water Rule

A divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of a regulation issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act (CWA). This rule — the so-called WOTUS rule — represents the EPA and Army Corps’ effort to clarify the scope of federal regulatory jurisdiction in light of Supreme Court decisions in 2001 and 2006 concluding that the agencies had adopted an unduly broad interpretation of the scope of their authority. Numerous challenges against the WOTUS rule are pending in courts around the country.

There is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts. Other courts considering WOTUS rule challenges have split on this question. Also interesting is that those parties seeking a stay — those opposing the rule — are also those who are arguing that the challenges should be heard in district courts, and that Sixth Circuit lacks jurisdiction to hear the initial challenge.

The majority concluded that the opponents of the WOTUS rule have shown a sufficient likelihood of prevailing in their challenge to justify the stay. Judge McKeague, joined by Judge Griffin, wrote for the court:

[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act,it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).

The majority also concluded that there were good reasons to maintain the status quo pending the resolution of challenges to the rule.

What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.

The court also noted that (as discussed here), the rule has already been stayed in 13 states. A nationwide stay serves the additional purpose of maintaining nationwide uniformity while the litigation proceeds.

Judge Keith dissented from the court’s opinion on the grounds that the court should not issue a stay against the rule until it determines that it has jurisdiction under the CWA to review the rule. In response, the majority argued that it has the discretionary power to issue a stay pending the resolution of the jurisdictional question, and that briefing on that matter is underway.  (Wash Post, 10/9/2015)