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May 2, 2019 |
State
D.C. Circuit Partially Denies Petition For
Review Of TSCA Inventory Rule
On April 26, 2019, the U.S. Court of Appeals for the D.C. Circuit (D.C.
Circuit) issued its order on the petition for review of the U.S. Environmental
Protection Agency’s (EPA) final rule on the Toxic Substances Control Act (TSCA)
Inventory Notification (Active-Inactive) Requirements (82 Fed. Reg. 37520 (Aug.
11, 2017)), which denied the petition for review on all but one claim.
Petitioner Environmental Defense Fund (EDF) challenged five distinct features
of the Inventory final rule: (i) EPA’s exclusion of substantiation
questions regarding reverse engineering; (ii) the final rule’s criteria for
“maintaining” a confidentiality claim; (iii) EPA’s choice not to incorporate
certain regulatory requirements into the final rule; (iv) EPA’s failure to
implement the Act’s “unique identifier” requirements in this rulemaking; and
(v) the final rule’s exemption of exported chemicals from its notification
requirements.
The D.C. Circuit’s order states that only the first claim succeeds past the
standard of review required under both the Administrative Procedure Act (APA)
and TSCA, however; specifically, EPA acted arbitrarily and capriciously via its
“omission of any inquiry into a chemical identity’s susceptibility to reverse
engineering [which] effectively excised a statutorily required criterion from
the substantiation process.” Even though EPA included several
substantiation questions to address reverse engineering in the proposed rule,
EPA did not include any “substantiation questions related to the requirement that
a substance’s chemical identity not be susceptible to reverse engineering” and
declined altogether to “‘secure answers’ substantiating a company’s ‘assertion’
that its chemical product cannot be reverse engineered.” The court states
that this error was “fatal” and remands this issue back to EPA for EPA to
“address its arbitrary elimination of substantiation questions regarding
reverse engineering.” For further details, see
Bergeson & Campbell, P.C.’s (B&C®) TSCAblog™ article.
Industry
National Chicken Council
Submits Letter To EPA On The E15 Rule
On April 29, 2019, the National Chicken Council submitted
a letter to EPA’s Office of Transportation and Air Quality outlining the
potentially negative impact of the changes to the biofuels policy on the
poultry industry. In his letter to EPA, Mike Brown, President of the
National Chicken Council, reported concern with EPA’s proposal on year-round
ethanol-15 (E15) use under the Renewable Fuels Standard (RFS) Program. The
National Chicken Council believes that EPA has failed to consider the impact of
such volume waivers on the boiler industry, and for poultry and livestock
feeders generally. Brown assures EPA that a year-round E15 use waiver “will
result in a rapid expansion of corn use under the RFS adding the potential for
price and supply volatility in the corn market.” Instead of the aforementioned
proposed modifications, the National Chicken Council is suggesting that EPA
consider a predictable, transparent off-ramp based on the U.S. Department of
Agriculture (USDA) stocks-to-use-ratio in the June World Agricultural Supply
and Demand Estimates (WASDE) report. Partial waivers would then be structured
for the remainder of the year. The structure of the partial waivers is further
detailed in the letter.
Research
Biofuels In Canada Report Published
In April 2019, Navius Research Inc. (Navius Research) published a report titled “Biofuels in Canada 2019: Tracking biofuel consumption, feedstocks and avoided greenhouse gas emissions.” Using public data, the report analyzes the volume of transportation biofuels consumed in each Canadian province and estimates the impact of this consumption on greenhouse gas (GHG) emissions and transportation energy costs. An increase in both ethanol and renewable fuel consumption is noted in the report, which has led to reduced fuel expenditures in Canada by 0.42 percent from 2010 through 2017. This decreased expenditure is relative to a counterfactual scenario without biofuel consumption. Relative to this counterfactual scenario, differences in fuel energy density and fuel costs, Canada has ended up paying more taxes due to biofuel blending and consumption.
ELI Publishes Book On Legal Pathways To Deep Decarbonization
On April 25, 2019, the Environmental Law Institute (ELI) held an event to provide an overview of their latest publication, a book titled Legal Pathways to Deep Decarbonization in the United States. Providing an overview of the book, a few of the authors were part of a panel discussion opened by William K. Reilly, former EPA Administrator under President George H. W. Bush. In his opening remarks, Mr. Reilly emphasized the potential existing with politics to change culture to achieve low-carbon emissions in the near future. Following Mr. Reilly, Commonwealth Professor of Environmental Law and Sustainability Director at Widener University, John C. Dernbach, started the panel discussion by providing an overview of the contents of the book. According to Professor Dernbach, deep decarbonization is defined as achieving at least 80 percent GHG emissions through deep cuts by 2050. The book therefore contains chapters on federal, state, and tribal legal tools that are available to decarbonize the U.S. In the book, the authors present twelve types of legal tools available; some that are regulatory tools, and some that are not. Types of legal tools include, research and development (R&D), market leveraging approaches, removal of incentives for fossil fuels, and infrastructure development, among others. During the event, other authors and co-authors spoke about specific chapters of the book, stating that they were almost certain that the legal tools available would create economic, social, and environmental security. Unfortunately, the event was interrupted by a fire alarm in the building. For further information, the book can be found for purchase here.
Other News
| ■ | nature, “Australian Gene-editing Rules Adopt ‘Middle Ground’ |
| ■ | Reuters, “U.S. EPA Stalls Biofuel Waiver Transparency Plan after White House Blowback –Sources |
| ■ | Inhabitat, “Fueled by Chocolate: Ghana’s Newest Biofuel” |
| ■ | ScienceDaily, “Sustainable Way to Increase Seed Oil Yield in Crops” |
| ■ | The Pantagraph, “‘Better and Greener:’ ISU Project Focuses on Recycling, Sustainability |
| ■ | Forbes, “This Line of Bags Is Manufactured with Algae – and the First Run Is Almost Sold Out” |
| ■ | Canadian Biomass, “CHAR Technologies’ Biocarbon Products Present New, Sustainable Opportunities |
| ■ | Labiotech.eu, “Nestle and Pepsi Invest in French Plastic Recycling Biotechnology” |
| ■ | Chemical Engineering, “Enzyme Engineering Enables Bio-based Hydrogen Peroxide” |
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