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Industry seeks legal cover with replacement rule.
As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.
As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.
If the agency drags its heels on replacing the rule, declares that it won't replace it at all or issues a narrower rule, lawsuits are certain. Among the tactics environmental lawyers are eyeing: bringing climate change "nuisance" claims under common law — where those suing would argue that they're harmed by emissions — and filing direct citizen lawsuits against EPA. Those prospects have industry worried and are part of the reason some are pushing for a replacement.
"If EPA is not acting like it is taking this issue in hand and moving forward aggressively against this singularly serious threat ... there will be more pressure for innovative remedies, innovative approaches," said Sean Donahue, an attorney representing environmentalists in the ongoing Clean Power Plan litigation. "A picture of abdication is going to inject a lot of energy into efforts to find other ways to get at these emissions," he said.
The Obama administration's Clean Power Plan required states to craft strategies to reduce carbon dioxide emissions from existing power plants. On Tuesday, EPA Administrator Scott Pruitt formally began the process to repeal the rule. EPA also said it's considering whether to issue a replacement rule. A replacement from the Trump administration is expected to forgo the broad approach that the Obama administration took and focus more narrowly on efficiency limits at specific power plants.
The prospect of being vulnerable to widespread common law and citizen lawsuits is extremely unattractive to industry, which could face steep legal costs and settlement fees. Having a replacement rule for the Clean Power Plan could help take some of the legal uncertainty off the table.
"I think that for several reasons, the vast majority of people in the business community believe that there should be a reasonable regulation instead of no regulation at all," said Jeff Holmstead, an attorney at Bracewell LLP. "Part of that is they think that that protects them against these nuisance suits, I think that's certainly part of it. They would also just like to have some regulatory certainty."
Looming over the legal debate is a 2011 Supreme Court decision.
In the 2011 case American Electric Power Co. v. Connecticut, a state-led coalition sued six power companies, arguing it was hurt by the companies' emissions contributing to climate change. But the justices ruled that the Clean Air Act pre-empted such federal common law claims. Because the court had previously ruled that EPA had the authority to regulate greenhouse gas emissions, the ruling was seen to preclude common law claims brought under federal law.
The question being pondered now: What if EPA doesn't actually act to limit greenhouse gas emissions?
"At the time AEP was decided, it looked like EPA was actually going to move forward with fulfilling its statutory duty," Donahue said. "And so it is certainly a significant change in the game to see EPA pulling back from fulfilling its statutory duty, and I think we'll have to see what happens."
Multiple legal experts, though, said they see an uphill battle for climate change claims brought under common law, even in the absence of any EPA limits on greenhouse gas emissions.
That's because, in the 2011 opinion, Justice Ruth Bader Ginsburg wrote that displacement occurred when Congress passed the Clean Air Act. "The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue," the opinion says.
"It's the legislation that displaces or pre-empts, not regulation," said Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law.
Eric Glitzenstein, partner at Meyer Glitzenstein & Eubanks LLP, a D.C. law firm that was involved in AEP, was not optimistic about using federal nuisance cases either, citing the Supreme Court's broad ruling in the 2011 decision. "I have a hard time seeing how one would get around that," said Glitzenstein, who represented Defenders of Wildlife, the Center for Biological Diversity and the National Wildlife Federation in an amicus brief in AEP.
According to Tom Lorenzen, an attorney at Crowell & Moring LLP who's represented utilities in the litigation opposing the Clean Power Plan, "displacement continues to hold whether there's a replacement rule or not because EPA has the authority to regulate under [the Clean Air Act]."
However, he added, "I think there's less incentive for environmental groups and others to try to bring these suits if the federal government is regulating."
Judges 'may take it into their own hands'
But experts note that the "displacement" in AEP extends only to federal common law and not to claims brought under state law.
"There's nothing the Trump administration can do to shield power companies and coal companies from liability under state law, so they can't get that kind of shield," said David Doniger, director of the Climate & Clean Air Program at the Natural Resources Defense Council.
As the Trump administration works to kill the Clean Power Plan, cities and counties in California are already turning to state common law.
Since July, three California cities and two counties have sued companies for damages related to climate change under state public nuisance law. The lawsuits claim that the companies — which include BP PLC, Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell PLC — have intensified climate change and exacerbated costly sea-level rise.
"We're going to ensure that those responsible for the problem are held to account," Dennis Herrera, San Francisco's city attorney, said last month (Climatewire, Sept. 21).
David Bookbinder, counsel at the libertarian Niskanen Center and former climate attorney at the Sierra Club, said that judges have dealt with claims of injuries to people and property for centuries. While climate change cases are more complex, they may be more likely to succeed the longer Congress and EPA punt on regulating industrial emissions.
"The longer the delay, the more likely it is that judges, be they state or federal judges, will be receptive to the idea that they are the only ones who can do anything," he said.
He added: "The judges don't want to do this. They would far prefer that either Congress dealt with it or EPA dealt with it. But they may take it into their own hands."
Still, state common law claims on climate change are a relatively untested legal area. Up to now, courts have expressly declined to address such claims, Burger said.
If the state lawsuits fail, it could increase the impetus for filing federal common law claims as a "tool of last resort," Burger predicted.
"It seems perfectly plausible that a city, a state, an environmental organization would say, well, what are we going to do?" he said. "The courts are blocking state common law avenues, the federal government is not doing anything, courts aren't forcing them to do anything — we have to go back to the idea that there's a right that's being infringed on here."
Some conservatives are dismissing concerns about both federal and state nuisance cases.
The Texas Public Policy Foundation, a conservative nonprofit, pointed to the decision in AEP when representatives met with White House officials last month.
In a handout given to administration officials, the foundation noted it was difficult at both the state and federal level to prove injury from greenhouse gases from specific sources or categories of sources since they are emitted worldwide, from "virtually every nook and cranny of the developed and developing world."
"Even in the event that a legally defensible scientific case could be made that total global anthropogenic emissions are significantly contributing to climate change, allocating responsibility among emitters everywhere will be an impracticable task for federal courts to undertake," the group wrote.
Citizen suits
If EPA declines to replace the Clean Power Plan or slow-walks a new rule, the agency will also likely face direct legal challenges from supporters of climate action, lawsuits known as citizen suits. States, environmentalists and health groups could file citizen suits that challenge the Trump administration's unreasonable delay or failure to act.
It wouldn't be the first time on this issue. In fact, the Clean Power Plan came about after a yearslong legal tug of war ultimately won by states that wanted EPA to crack down on climate-warming emissions.
After the 2007 Supreme Court decision finding EPA has the authority to regulate greenhouse gases, the Sierra Club and Our Children's Earth Foundation then filed a citizen suit pushing EPA to craft power plant emissions standards. EPA responded by issuing a rule that set new performance standards for power plants but did not address carbon dioxide.
New York then filed a separate lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit that prompted a 2007 settlement allowing EPA to take another stab at power plant standards, this time incorporating greenhouse gases. After years of additional legal wrangling and another Supreme Court decision affirming EPA's authority, the Obama administration issued the Clean Power Plan.
"It's almost certain that if EPA moves forward with the repeal and doesn't do anything on the replacement or moves so slowly on the replacement that in effect nothing will happen, I would expect that there would be a lawsuit filed against EPA of the same sort arguing that EPA is thereby violating a nondiscretionary duty," said Richard Revesz, director of New York University's Institute for Policy Integrity.
Some conservative lawyers have pushed back on just how firm that duty is. They have argued that the Clean Air Act simply does not give EPA the tools to regulate carbon dioxide emissions from power plants, or that the agency's determination that such emissions endanger public health is not specific enough to compel regulation for the power sector.
Environmental lawyers largely shrug off those arguments, pointing to EPA's 2009 endangerment finding for greenhouse gases and Supreme Court cases that have affirmed the agency's authority.
"If he does nothing at all, we can bring various kinds of litigation to force him to act," NRDC's Doniger said. "The D.C. Circuit itself has indicated that he has an obligation to act, and at least some of the judges there are looking at their wristwatches."
Doniger was referring to a recent concurrence from two D.C. Circuit judges who agreed that litigation over the Obama rule should be put on hold but cautioned that EPA has a legal duty to act on climate change.
"Combined with this court's abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future," Judges David Tatel and Patricia Millett wrote in August. "Questions regarding the continuing scope and effect of the Supreme Court's stay, however, must be addressed to that Court."
Revesz said that the uncertainty provides a good reason for the D.C. Circuit to decide whether the Obama rule is legal. The court has put litigation over the rule on hold as the Trump administration decides what to do with the rule.
"The fact that this litigation is likely to be coming up down the road actually provides a pretty strong argument for the D.C. Circuit to decide the pending challenge to the Clean Power Plan now as opposed to waiting for this whole process to unfold," Revesz said.
He added: "If the D.C. Circuit, for example, upheld the Clean Power Plan, a lot of these things would get resolved. There'd be no federal common law actions. We would know that the repeal is illegal, and there would be a fair amount of certainty and less litigation."
Reporters Niina Heikkinen and Robin Bravender contributed.
Twitter: @apeterka Email: areilly@eenews.net
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What needs to be done to stop wildfires in drought-killed forests.
A century of fire suppression followed by the worst drought in recorded history has put California’s forest landscapes and water supply at risk.
WITH 17 LARGE wildfires in California igniting in 24 hours this week, October is shaping up to be a brutal month for wildfires, as it often is. It’s too soon to know what caused multiple conflagrations spreading across Northern California’s wine country, but elsewhere in the state dead and dying trees have been the subject of much concern. The five-year drought in California killed more than 102 million trees on national forest lands. That is a gigantic problem in itself that will lead to huge wildfire risks in the future and big changes in wildlife habitat.
With that huge number in mind, it is easy to forget that the forests were already in a sorry state. It’s now widely understood that a century of misguided – but well-intentioned – policies over the past 100 years produced forests that are too densely packed with small trees and too vulnerable to possibly catastrophic fires.
Water supplies are also a concern, because the forests are nature’s water-storage sponges. They capture snowfall and release it slowly, helping Californians survive long, dry summers. But there’s also a concern that overgrown forests consume too much water, and that thinning some forests could generate more runoff.
A new report by the Public Policy Institute of California proposes some different approaches to begin chipping away at the problem. It recommends some changes in state law and new contracting practices, among other things. It also suggests some changes in public attitudes.
To learn more, Water Deeply recently spoke with Van Butsic, the study’s lead author. Butsic is a land system scientist with a Ph.D. in forestry; he works as an assistant cooperative extension specialist in the University of California, Berkeley, Department of Environmental Science, Policy and Management.
Water Deeply: How are California’s forests doing in the wake of the drought?
Van Butsic: The drought, coupled with the last century of management actions, caused a huge pulse in tree mortality. There are always dead trees in the woods, but the additional dead trees in the environment due to the drought is about 15 million a year.
One hundred years ago many, many large trees were harvested. Then we have a century of fire suppression, so we take fire out of the equation. So new trees are coming back and they’re not burning. Then, about 30 years ago, we stopped harvesting on most national forests. So we have a condition where the forests are of a much higher density than they’ve ever been before. Then we have the drought, and lots of trees on the landscape are susceptible to bark beetle outbreaks due to lack of water.
Water Deeply: How much additional prescribed fire is needed to bring the forests back to a healthy state?
Butsic: We didn’t quantify that ourselves. But what I would say is, the statistics we’ve seen from a number of good scientists have put the number of additional acres that need to be treated at somewhere between 200,000 and 500,000 per year. So a very large amount. The numbers in those studies come from a historical look at what was normal 100 or 150 years ago. That’s more than a doubling of what’s going on now. So it’s a substantial increase. I want to say that right now the Forest Service is doing somewhere between 100,000 and 200,000 per year.
Water Deeply: There’s also a need for more mechanical thinning, or logging. How do we get past the controversy over that?
Butsic: One thing that has happened in California is sort of a distrust of mechanical thinning. Often, when the Forest Service or private landowners say they’re doing mechanical thinning, certain environmental groups think that’s code for clearcutting. One thing we try to say in the paper is this is a valuable tool and it needs to be on the table if we want to get this work done. So making sure mechanical thinning is not written off as code for clearcutting is going to be important if we’re going to manage forests.
Water Deeply: How do we ensure that it’s not clearcutting?
Butsic: There are very strong forest practice laws in California. My understanding of the current regulations governing forest management on federal lands is that in Forest Service Region 5, which California belongs to, it’s really nearly impossible to harvest trees [with a diameter] over 30in (76cm). So these trees are not really at risk, I would say, as long as the Forest Service follows its own recommendations. And yet this is still a stumbling block in conversations about mechanical thinning. People are still very worried about these trees because they’ve seen in the past some large trees disappear. That’s a difficult situation to work with. The laws are in place to protect those trees, and yet people don’t really trust them.
Water Deeply: You recommend state and federal land management agencies justify their continued fire suppression. Why do you suggest that?
Butsic: Most ecologists would agree the long-term suppression of fire has led to a change in forest structure, and probably a decline in forest health. Typically, when agencies do any activity that might cause environmental harm, they need to justify it. We don’t see that for fire suppression. And there’s good reason why you wouldn’t do this on a case-by-case basis. If a fire breaks out around a house, you want to go and put it out. But making sure agencies explain their management choices around wildfire would lead them to use some of their tools, like managed wildfire, more often.
Water Deeply: You report that state law treats wildfire and prescribed fire differently in regard to air quality. Is that still appropriate?
Butsic: There’s a growing body of evidence that prescribed fires are less harmful to humans than non-managed wildfires, because they burn at lower severity, typically. And we know an area burned with a prescribed fire is less likely to burn at high severity in the near future. So clearly, there are long-term air quality benefits to prescribed fire.
But with prescribed fires, there are short-term costs caused by regulation. There’s a lot of planning that needs to go into conducting a prescribed fire for air-quality reasons. And the air-quality reasons are real. We’re not saying people with asthma are not affected by smoke. But we can manage it with prescribed fire and know when the fire is going to happen and know that in the future, we’ll have less risk of severe wildfire. Or we can just leave it to chance and, eventually, we’ll probably get a severe wildfire anyway.
So treating those differently under state law is just problematic.
Water Deeply: What kind of additional mechanical thinning are you calling for?
Butsic: We think mechanical thinning can be really useful in a few ways. If you’re near homes or near roads, mechanical thinning has a very key role to play in those instances. The other is where there are logs that could be harvested that could offset the cost of other treatments. Prescribed fire and managed wildfire are both costly.
There is a number of studies that show mechanical thinning with removal of some sawlogs can be a net profit in certain areas, and the largest trees we looked at removing in the report are 16in (in diameter).
Water Deeply: So why isn’t it happening?
Butsic: There is a number of barriers that we’ve identified to getting the work done. Part of it is the history of distrust. One roadblock is that it is somewhat risky for leadership to try to do these big treatments. If you’re going to do big prescribed fires or let wildfires be managed, there’s risk to the leadership that things could go wrong. And if they do, they look bad. So I do think these groups do not have a risk-taking culture. That’s just not the Forest Service culture. I do think that’s probably hindered them a little bit.
Another barrier is there still are issues with the infrastructure. In some parts of the state, there just are not great places to take the material: sawmills and biomass plants. Some people have said that’s the main roadblock. I’m not sure we agree with that.
Water Deeply: Will these things improve water supply?
Butsic: We think there’s real potential. There’s probably more uncertainty in that science than in other areas. But we do think there’s real potential for the maintenance of the quality and quantity of waters we have today under a healthy forest regime versus an unhealthy one.
Water Deeply: What’s the public’s role? Do we need to be more open-minded about prescribed fire and some kind of logging?
Butsic: I think understanding the role of fire and the necessity of it in the landscape, having the public appreciate the role that fires plays in keeping forests healthy, is something we could improve upon. We need to build the social license to do treatments.
The media often portray fire in the forest as a total destruction. After a fire goes through, it’s not pretty. You see a lot of charred and dead trees. It’s not an appealing landscape. But understanding the long-term importance of having that disturbance on the landscape is certainly something the media could help educate the public on.
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Justices tee up arguments in water wars, rebuff Blankenship.
The Supreme Court has said it will hold oral arguments in two major battles among states over water rights.
The Supreme Court today said it will hold oral arguments in two major battles among states over water rights.
In one case, Texas argues that New Mexico is violating the Rio Grande Compact by diverting water before it reaches the Lone Star State. The other is part of a long-running interstate water war between Florida and Georgia.
Justice said they will hear arguments in both cases "in due course."
The conflict between Texas and New Mexico involves a 1938 compact approved by Congress to apportion water in the Rio Grande Basin.
Texas says the compact mandates the diversion of a certain amount of water to New Mexico's Elephant Butte Reservoir. The state argues the water must be allowed to flow from there unimpeded through southern New Mexico into Texas.
But Texas, where rapid population growth and drought conditions have put a strain on water supplies, says New Mexico is illegally diverting water before it crosses the border.
Although the United States is not a signatory to the compact, the Obama administration had filed court documents supporting Texas' claim.
The government says it wants to both protect its obligation to deliver water to Mexico and make sure Texas gets its fair share.
New Mexico moved to dismiss the suit for failure to state a claim under the 1983 compact's terms. The state says the deal didn't require it to guarantee water deliveries to the Texas border or to prevent diversions after ensuring water gets to the Elephant Butte Reservoir.
New Mexico says its only obligation is to deliver water to the reservoir. From there, the state argues its laws govern distribution within its borders.
But the Land of Enchantment suffered a blow when a special master appointed by the court, A. Gregory Grimsal, recommended that justices deny its motion.
"The equitable apportionment achieved by the 1938 Compact commits the water New Mexico delivers to Elephant Butte Reservoir to the Rio Grande Project," Grimsal wrote. "That water is not subject to appropriation or distribution under New Mexico state law" (Greenwire, Feb. 10).
The special master also recommended that the Supreme Court hear the U.S. claims even though the high court doesn't have exclusive jurisdiction.
Today the court agreed to deny New Mexico's motion to dismiss and said it would hold oral arguments on the United States' and Colorado's exceptions to the February special master report.
The Justice Department in July filed a brief taking issue with New Mexico's statement that the compact and the special master's report took away its sovereign immunity.
New Mexico is not required to cede ownership of Rio Grande water but rather is required to administer state law in accordance with the compact, DOJ argued.
And DOJ rejected Colorado's argument the federal government is only allowed to intervene in the legal dispute to the extent needed to protect its treaty obligations with New Mexico (Greenwire, Aug. 15).
Southeast water wars
The Supreme Court today also said it would hold oral arguments in the ongoing Southeast water wars. In that case, a court-appointed special master has recommended that the Supreme Court deny Florida's request that it put a cap on Georgia's consumption of water in the Apalachicola-Chattahoochee-Flint River Basin.
The special master found that the court couldn't show that a cap on Georgia water use would actually result in more water flowing into the Sunshine State.
That's because the Army Corps of Engineers, which was not a party in the case, controls water flow in the river basin system through a system of five dams and four reservoirs. Florida has objected to the recommendation, arguing that Army Corps involvement is not essential to its case (Greenwire, June 6).
Blankenship conviction upheld
Justices today denied dozens of other petitions, including former coal executive Don Blankenship's attempt to overturn his conviction for mine safety violations.
Don Blankenship. Brianhayden1980/Wikipedia
Blankenship was convicted for conspiring to violate federal mine safety standards following the 2010 Upper Big Branch mine explosion in West Virginia and sentenced to a year in prison. The 2010 mine explosion killed 29 miners and was the worst such disaster in decades.
Blankenship appealed the conviction to the 4th U.S. Circuit Court of Appeals, which upheld the decision. He took his appeal to the Supreme Court after his release from prison.
The former CEO argued in part that a lower-court trial judge erred when instructing a jury to convict him for his failure to prevent others from violating mine safety laws and that the lower courts mistook "reckless disregard of the law" for "criminal willfulness."
DOJ, though, had urged the Supreme Court to uphold the conviction. "The Upper Big Branch mine had a history of safety problems," DOJ said in an August court filing (Greenwire, Aug. 30).
The government wrote, "Petitioner knew about the safety problems at Upper Big Branch because he maintained 'close supervision of mine operations and staffing.'"
Twitter: @apeterka Email: areilly@eenews.net
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These suburbanites may have no fracking choice.
In Colorado, it’s hard to keep drillers out of the neighborhood.
When Bill Young peers out the window of his $700,000 home in Broomfield, Colo., he drinks in a panoramic view of the Rocky Mountains. Starting next year, he may also glimpse one of the 99 drilling rigs that Extraction Oil & Gas Inc. wants to use to get at the oil beneath his home.
There’s little that Young and his neighbors can do about the horizontal drilling. Residents of the Wildgrass neighborhood own their patches of paradise, but they don’t control what’s under them. An obscure Colorado law allows whole neighborhoods to be forced into leasing the minerals beneath their properties as long as one person in the area consents. The practice, called forced pooling, has been instrumental in developing oil and gas resources in Denver’s rapidly growing suburbs. It’s law in other states, too, but Colorado’s is the most favorable to drilling.
Now fracking is coming to an upscale suburb, and the prospect of the Wildgrass homeowners being made by state law to do something they don’t want to do has turned many of them into lawyered-up resisters. “It floors me that a private entity could take my property,” says Young, an information security director.
Many states require 51 percent of owners in a drilling area to consent before the others have to join. Pennsylvania doesn’t allow forced pooling at all in the Marcellus, one of the most prolific shale gas regions in the country. Texas, the center of the nation’s oil production, has strict limits on the practice. Despite its founding cowboy ethos of rugged individualism, Colorado has one of the lowest thresholds. “There’s a tension in oil and gas law between allowing private property owners to develop their mineral estates on their own and the state’s desire to ensure that ultimate recovery of oil and gas is maximized,” says Bret Wells, a law professor at the University of Houston.
The rise of horizontal drilling and hydraulic fracturing over the past decade has ushered in a modest oil boom on Colorado’s Front Range by enabling companies to wring crude more cheaply from the stubborn shale that runs beneath Denver’s northern suburbs. From 2010 to 2015, Colorado’s crude output almost quadrupled. This year the state is pumping more than 300,000 barrels a day, most of it from the Wattenberg oil field beneath Wildgrass and beyond.
Colorado’s population is booming, too. As Denver’s suburbs bloom northward into oil and gas territory—Wildgrass is about 20 miles north of Denver, not far from Boulder—housing developments are erupting where once there were only drilling rigs and farmland. And because horizontal drilling can reach as far as 2 miles in all directions from a well, companies need underground access to more land to maximize production from each site. The Colorado Oil & Gas Conservation Commission issues hundreds of pooling orders every year. “It’s an entirely new issue,” says David Neslin, former director of the commission, now an attorney at Davis Graham & Stubbs in Denver. “That’s creating some understandable friction with local governments and local communities.”
Denver-based Extraction Oil & Gas is at the epicenter of that friction. Almost all its acreage is in populated areas. So the company, like others in the region, has put a lot of energy—and cash—into making its operations more palatable to suburbanites who fear the prospect of a drilling rig sprouting up within sight of their kiddie pools. Extraction almost exclusively uses electric drills, which are quieter than diesel-powered, and a new generation of hydraulic fracturing equipment that cuts noise. “It’s incumbent upon us to learn to live with these communities,” says Extraction spokesman Brian Cain. “Where we can go the extra mile to minimize impacts, we wish to do so.”
The company’s latest project involves drilling 99 horizontal wells in Broomfield. That means leasing mineral rights from Wildgrass residents. Letters went out to some of them last year offering a 15 percent royalty and a $500 signing bonus. Some signed, others demurred, and still others organized a campaign aimed at blocking the project. Extraction hasn’t applied for a forced pooling order, but Young and his neighbors have come to believe it’s inevitable.
The suburb’s agitation prompted the city to create a special task force to evaluate Extraction’s proposal. The company responded by taking members of the task force on a tour of oil and gas country. It wanted to show how its operations are less disruptive than traditional drill sites.
Ultimately, the company agreed to more stringent environmental standards than the state requires. It will move some wells 1,300 feet from neighborhoods, almost three times farther than the law mandates. It will reduce the number of wells per site, monitor air emissions as well as water and soil quality, and build pipelines to transport oil immediately off-site instead of storing it in the city. “I can see Broomfield turning out to be a new model for how large-scale development gets done,” says Matt Lepore, director of the state commission, which will rule on Extraction’s applications for siting the wells this month.
Such concessions have smoothed the path for development in many communities. But for some Wildgrass residents, any leasing is unacceptable. They say they fear accidents, such as the April pipeline explosion that killed two people and destroyed a home in Firestone, 20 miles away. Some simply find the terms of the initial lease offer laughable.
“The money is so negligible,” says Elizabeth Lario, a health coach who’s lived in Wildgrass since 2005. And then there are property values: Homes in Wildgrass range from $500,000 to more than $1 million. “The royalties won’t offset the drop in property value,” says Stephen Uhlhorn, an engineer who’s lived in Wildgrass for four years. Oil development “is now hitting affluent neighborhoods where people have assets and livelihoods that exceed the value of any royalty they’re offered.”
The bedrock of Colorado’s oil and gas policy is a 1951 law that says responsible fossil fuel development is in the public interest. The state, the law says, must protect the public from “waste”—industry parlance for oil that’s left in the ground. While Colorado has some of the strictest environmental regulations of any oil-producing state, it gives companies latitude in choosing where to drill. The Colorado Supreme Court has repeatedly held that the state’s interest in developing mineral resources preempts any local law that would curb drilling.
Efforts to change the statute have fizzled. State Representative Mike Foote, a Democrat whose district is adjacent to Broomfield’s, introduced a bill earlier this year to raise the pooling threshold to 51 percent. It passed the House by a slim margin but died in a Senate committee in a party-line vote, with Republicans opposed. “The oil and gas industry pretty much controls the capital, particularly in the Senate,” Foote says. “Operators can do whatever they want.” Lepore, the head of the state oil commission, concedes the pooling threshold is low compared with other states. “I have no philosophical objection to a 51 percent requirement,” he says. “There are intelligent changes that could be made to the forced pooling law.”
Young, the Wildgrass resident, received a lease offer last year. Since then he’s been working with a lawyer to consider his options, and so far he doesn’t like them. “You couldn’t put a Walmart where they’re putting these wells—no one would approve that zoning,” he says. “But for some reason, the industry is completely exempt from everything.”
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Public interest groups decry EPA's utility-friendly move on coal ash.
A last-minute notification from the EPA left opponents with almost no time to weigh in on the disposal of a coal-power byproduct laced with toxics and tied to spills that have cost billions of dollars to clean up.
At 7:51 p.m. on Sept. 14, Lisa Evans’ evening was interrupted by a call from the Environmental Protection Agency. Their after-hours message: An extension granted earlier had suddenly been rescinded, and public comments regarding the overhaul of state regulations on coal ash — one of the most voluminous forms of toxic, industrial waste in the country — were now due in barely four hours, at midnight.
Evans, an attorney focusing on hazardous waste at the environmental law organization, Earthjustice, was helping coordinate comments on behalf of 50 groups. The last-minute notification from the EPA left her, and by extension, the public, with almost no time to weigh in on the disposal of a coal-power byproduct laced with heavy metals and other toxins and tied to spills and leakages that have cost billions of dollars to clean up.
To public interest groups, the proposed changes to coal ash regulations — which would give states broad “flexibilities” in their oversight of the waste — were troubling enough for being practically unenforceable. But they say abruptly ending the comment period is especially irksome — a bully tactic used to shut out meaningful public input.
“It’s like kids playing on the playground. It’s just not professional conduct,” said Maxine Lipeles, director of the Interdisciplinary Environmental Clinic at Washington University, who rushed to submit at least brief comments after being alerted of the changed deadline by Evans. “I’ve never seen anything like this.”
Those watchdog groups worry that the conduct is a reflection of the way the agency now does business under newly appointed administrator Scott Pruitt: respond to industry influence while showing blatant disregard for a fair and earnest public feedback process.
“We have a one-two punch,” Evans said. “First, we don’t get an enforceable rule, and the EPA cuts us out of the process guiding its formation.”
According to Evans, the EPA was originally prompted to reconsider coal ash regulations after a request from utility industry representatives.
The agency on Aug. 15 released a guidance document that outlined requirements for states aiming to deviate from federal coal ash rules with individually tailored state-by-state policies.
Public interest groups say the guidelines under consideration are unlawfully loose, providing a number of ways for states to weaken enforcement of coal ash regulation below federal standards.
“(The EPA) can’t change the regulations overnight, but they can approve weak state programs,” said Lipeles. “That’s what this guidance sets up criteria for.”
Comments submitted by Lipeles briefly summarize that the guidelines would allow states to cease groundwater monitoring near coal ash sites, set less protective groundwater standards, and exempt facilities from required clean-up.
“Those are major deviations and weakenings of the federal program,” Lipeles said. “But they didn’t give us a chance to make that point.”
Evans added that, historically, the EPA has put a clearly defined rule in place that states must abide by when developing their own programs to regulate certain pollutants. But she said that clarity was not provided this time.
“(The) EPA has refused to write a rule guiding the authorization process,” she said. “It’s always done through a process that’s governed by regulations. … It has never yet been done by guidance, which is an unenforceable set of guidelines.”
Critics say the timetable for the public to comment on the EPA’s guidance was tight to begin with.
The agency gave the public a deadline of Sept. 14 — just one month — to submit comments. But on Sept. 8, the agency told Evans that a 30-day extension had been granted — only to call six days later saying, without explanation, that the extension had been revoked.
Unsurprisingly, Lipeles says the comments rushed in before the deadline were unable to adequately address the substance of the policies at stake. The bulk of her two-page submission instead discusses how the agency is “denying the public basic procedural fairness,” before expressing broad concern with some of the guidelines.
The EPA did not respond to requests for comment.
Though higher-profile coal ash spills have occurred in states such as Tennessee and North Carolina, groups have raised concerns about contamination from the material in Missouri, where nearly 80 percent of the state’s energy comes from coal. In the St. Louis region, coal ash at Ameren’s power plants is often stored in ponds in floodplains. The ponds have traditionally been prone to leakage, and the area’s increased vulnerability to floods has raised alarm about them being overrun by adjacent rivers, even though they are protected by berms.
Ameren said it supports state-based, as opposed to federal, oversight of the material.
“We like the idea of state regulations,” said Rick Smith, Ameren’s director of environmental strategy and analysis. “A state program is preferable because it allows Missouri regulators to consider site-specific conditions ... and adjust regulatory seams appropriately, instead of a one-size-fits-all approach by the federal government.”
Ameren denied that the new guidelines under consideration would let states relax rules beneath federal requirements. The St. Louis-based power provider is a member of the Utilities Solid Waste Activities Group, a key industry organization engaged with the EPA on the potential shift in coal ash regulation. Regardless of the outcome, Smith said Ameren will proceed with plans to phase out its ash ponds and convert to dry ash handling systems.
The EPA has not indicated whether additional comments will be accepted in the process, going forward.
Even in lieu of public dialogue, Evans said legal hurdles may at least slow the Pruitt EPA’s perceived rush to loosen coal ash rules.
“As the Pruitt administration has seen, the Obama regulations are protected by the Administrative Procedure Act,” said Evans. “It has to have a rational basis for whatever steps they propose. ... The Pruitt EPA may have to proceed more slowly, but they may find discretion under the law to weaken the (coal ash) rule.”
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Pollution could increase as Illinois governor, EPA moves to rescue coal plants.
Gov. Bruce Rauner's administration is pushing to overhaul stringent limits on lung-damaging pollution from some of the last coal-fired power plants in Illinois.
Michael HawthorneContact Reporter
Chicago Tribune
In a move that could lead to dirtier air in Chicago and other downwind communities as far away as New York, Gov. Bruce Rauner's administration is pushing to overhaul stringent limits on lung-damaging pollution from some of the last coal-fired power plants in Illinois.
Proposed amendments to state rules would scrap limits on the rate of pollution from a fleet of eight coal plants in central and southern Illinois owned by Dynegy Inc. Instead, the state would impose annual caps on tons of sulfur dioxide and nitrogen oxide emitted by the fleet — a subtle but significant change that could stall or reverse efforts to reduce Dynegy's contributions to smog, soot and acid rain.
Drafted with extensive input from the company's Chicago-based attorneys, the proposed pollution caps are significantly higher than what Dynegy's fleet emitted during each of the past two years, according to a Tribune analysis of federal pollution data.
Alec Messina, director of the Illinois Environmental Protection Agency, said the goal is to keep the financially struggling coal plants open by giving Houston-based Dynegy more flexibility to operate individual generating units, several of which are not equipped with modern pollution controls. Before joining the Rauner administration, Messina worked as a lobbyist for a trade group that represents the company's interests in Illinois.
State standards would still be tougher than federal requirements, Messina said, and company spokeswoman Meredith Moore noted emissions could still increase if the state's rate-based limits were kept in place.
But if a state rule-making panel approves the proposed changes, expected to be formally introduced this month, the new limit on sulfur dioxide would be nearly double what Dynegy's existing fleet emitted last year and higher than every year since 2012, according to the Tribune's analysis. The cap on nitrogen oxide emissions would be 79 percent higher than what came out of the smokestacks in 2016.
In an Aug. 25 letter to the state EPA, Attorney General Lisa Madigan's office questioned why the new regulations are necessary unless Dynegy plans to operate its dirtier coal plants more frequently and its cleaner plants less often.
The proposed pollution caps are set so high that the state would end up encouraging Dynegy to pollute more, Madigan's office said.
"We want to make sure the public is getting the full benefit of the pollution standards the company agreed to meet," James Gignac, Madigan's environmental counsel, said in an interview. Changing the standard now could roll back years of progress, he said.
Dynegy also secured a provision that would keep the pollution caps fixed at the same amounts — 55,000 tons of sulfur dioxide and 25,000 tons of nitrogen oxide annually — even if it decided to shut down individual generating units or scuttle entire plants.
An EPA draft would have automatically tightened limits on Dynegy's fleet to reflect plant closures, according to emails obtained by the nonprofit Environmental Law and Policy Center and shared with the Tribune. Chicago attorney Renee Cipriano, a former Illinois EPA director who represents Dynegy and other companies she once regulated, lined out or replaced language in the state's draft, the emails show.
"We are making those types of tweaks to the rule language, so hopefully they address your issues," Dana Vetterhoffer, an EPA attorney, responded in a May 31 email to Cipriano. "OK great," Cipriano wrote back four minutes later.
Howard Learner, the environmental group's president, said the changes would allow Dynegy to avoid installing pollution controls at its dirtiest plants and turn off the equipment at others.
"The company's strategy is to run these plants on the cheap for as long as possible, like an old Chevy beater," Learner said. "If the Rauner administration goes ahead with this, they're effectively passing on the health costs of Dynegy's pollution to the rest of Illinois and beyond."
Dynegy's Baldwin Energy Complex in Baldwin recently completed completed $1 billion in environmental upgrades, Monday, Dec. 10, 2012. B582558178Z.1 (E. Jason Wambsgans/Chicago Tribune) ....OUTSIDE TRIBUNE CO.- NO MAGS, NO SALES, NO INTERNET, NO TV, CHICAGO OUT, NO DIGITAL MANIPULATION... (E. Jason Wambsgans / Chicago Tribune)
Moore, the Dynegy spokeswoman, said in an email to the Tribune that swapping the state's current system for caps on the fleet's emissions "would mean real environmental benefits."
The EPA director echoed the company's comments. "For the first time there is a cap on this fleet. That's a big deal," said Messina, who took over the state agency last year after serving as a top aide in Rauner's office. He previously was a lobbyist for the Illinois Environmental Regulatory Group, an association that represents industries subject to state pollution regulations.
Dynegy doubled down on coal after emerging from bankruptcy five years ago. Like other coal-dependent energy companies, the firm has found it increasingly difficult to cash in on its bet as a surge of cleaner-burning natural gas and pollution-free wind power drove down the wholesale cost of electricity.
As a result, Dynegy has been trying to cut costs at power plants that are being priced out of energy markets.
During the past year the company has shuttered its Wood River plant near Alton, scrapped a unit at its Newton plant in Jasper County and announced plans to mothball two of the three units at its Baldwin plant in Randolph County. Baldwin and Wood River were equipped with pollution controls, and the company had started upgrading the Newton unit before abandoning the project.
Built in the 1950s, '60s and '70s, the Dynegy plants for years were exempt from the toughest provisions of the federal Clean Air Act. But laws and regulations became steadily tougher during the past two decades as scientists documented how pollution drifting from coal plants can trigger lung and heart disease and lead to early deaths far away from the smokestacks.
Burning coal to generate electricity also is contributing to climate change. Dynegy's Illinois plants emitted more than 32 million tons of heat-trapping carbon dioxide last year, an amount equivalent to the tailpipe exhaust of 6 million cars.
Dynegy became the state's largest producer of coal-fired electricity in 2013 when it acquired five plants from St. Louis-based Ameren Corp. Both companies had earlier agreed to meet the state's rate-based pollution standards, which gradually became more stringent over the past decade and were designed to force power companies to clean up coal plants faster than federal regulations require.
Ensuring compliance was relatively easy at the three plants Dynegy owned before the Ameren deal. A federal legal settlement required the company to upgrade the Baldwin plant and the Havana plant in Mason County with equipment that significantly reduced emissions of sulfur dioxide, nitrogen oxide and mercury, a potent neurotoxin.
Under state regulations, the two coal plants and a third one in Putnam County are limited to an annual average of 0.19 pounds of sulfur dioxide per million BTUs (British Thermal Units) of energy generated. The limit for the five former Ameren plants is 0.23 pounds per million BTUs, also averaged across the entire fleet.
Both groups of coal plants met the targets last year. But the average rate of sulfur dioxide from the four cleanest plants was 0.05 pounds per million BTUs. The average rate from the rest: 0.43.
Improvements in pollution control are the main reason why the combined amount of sulfur dioxide emitted by the eight Illinois plants now owned and operated by Dynegy dropped 68 percent between 2010 and 2016. During the same period, the amount of electricity generated by the plants dropped by 26 percent.
"This rule change ... would give Dynegy free rein to run its dirtiest plants without meaningful limits, putting communities at risk, said Henry Henderson, Midwest director of the nonprofit Natural Resources Defense Council.
Just three years ago, Dynegy CEO Robert Flexon described attempts by competitors to delay environmental improvements as the "wrong behavior." "Either invest or retire," he told the Tribune at the time.
Since then electricity prices have stayed low, making it more difficult for the company to profit from some of its plants. And installing and operating pollution controls costs money.
None of the Dynegy plants burns Illinois coal; the company ships its fuel by train from Wyoming mines that produce coal with a lower sulfur content. But the company employs about 1,000 people in Illinois and the power plants contribute to the tax base of local communities, making their survival a potent campaign issue as Rauner seeks re-election next year.
The push to change state regulations for Dynegy emerged from discussions about a 2016 energy bill that subsidized Chicago-based Exelon, a competitor that had threatened to close money-losing nuclear plants in the Quad Cities and Clinton. Though Rauner and state lawmakers rejected Dynegy's bid for its own state subsidies, emails show Messina had been discussing other options with the company's top lobbyist since at least November.
Efficiency standards in the new law, combined with state requirements to boost generation of wind power and other forms of renewable energy, promise to further erode the once-dominant position of coal in Illinois.
Dynegy says the Exelon deal scrambled an already volatile market governed by complex electricity auctions, which set prices lower than the amount Dynegy needs to recoup the cost of operating its coal plants.
Environmental groups contend it isn't the EPA's job to assist Dynegy, pointing to a state law requiring the agency to improve air quality "to protect health, welfare, property and the quality of life."
"Now isn't the time to go backwards," said Brian Urbaszewski, director of environmental health for the Respiratory Health Association of Metropolitan Chicago. "The state shouldn't be putting profits ahead of public health and erasing all the gains we've made."
mhawthorne@chicagotribune.com
Twitter @scribeguy
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US climate change policy: Made in California.
A peculiar confluence of history, legal precedent and defiance has set the stage for a regulatory mutiny in California that would reverberate throughout the country.
SACRAMENTO — The Trump administration may appear to control climate policy in Washington, but the nation’s most dynamic environmental regulator is here in California.
Mary D. Nichols, California’s electric-car-driving, hoodie-wearing, 72-year-old air quality regulator, is pressing ahead with a far-reaching agenda of environmental and climate actions. She says she will not let the Trump administration stand in her way.
As chairwoman of the California Air Resources Board, or CARB, Ms. Nichols is the de facto enforcer of the single biggest step the United States has taken to combat the effects of climate change: standards adopted under the Obama administration that mandate a deep cut in emissions from the 190 million passenger cars on America’s roads. Together, those vehicles regularly emit more earth-warming gases than the country’s power plants.
At the request of the major automakers, the Environmental Protection Agency officially opened a review of those standards last month. The move was seen as the prelude to a loosening of those targets, which require manufacturers to nearly double the average fuel economy of new cars and light trucks by 2025.
But a peculiar confluence of history, legal precedent and regulatory defiance has given California unique authority to write its own air pollution rules. And because 12 other states now follow California’s standards, the state finds itself in an extraordinary position to stage a regulatory mutiny of sorts — with much of the country’s car market in tow.
“We’re standing firm. We’re prepared to sue. We’re prepared to do what we need to do,” Ms. Nichols said in a recent interview. “We aren’t going anywhere.”
At stake in the dispute between officials in Sacramento, the state capital, and Washington is a measure that the Obama administration estimated would eliminate as much as six billion metric tons of greenhouse gas emissions and save consumers more than $1 trillion at the pump over the lifetime of the cars affected.
For now, Scott Pruitt, the administrator of the E.P.A., has said that he will not seek to revoke the federal waiver that allows California to set auto emissions standards — an action that would likely propel the issue to court. Automakers, similarly, have not publicly asked for such a move.
Still, the auto industry has hardly conceded defeat, several industry officials said. The car companies are urging California to negotiate a loosening of the current standards.
“We all have a common stake in working together,” said Mitch Bainwol, president and chief executive of the Alliance of Automobile Manufacturers, which represents 12 major automakers in the United States. Automakers, he said, want “the certainty of achievable targets.”
A Choking Haze
To understand why California has long blazed the trail for the rest of the country in air quality, gaze down from the hills above Turnbull Canyon at the Los Angeles haze.
Ringed by mountains that act as a pollution trap for the fumes from the valley’s cars and factories, the Los Angeles-Long Beach area consistently ranks among the nation’s worst areas for ozone and particle pollution.
But California’s smog was once much worse.
For much of the 20th century, swaths of Southern California were hit with smog outbreaks that turned the skies so dark that locals once mistook a particularly intense episode for a solar eclipse. Crops wilted; school events were canceled; Hollywood studios shut down their outdoor shoots.
The state moved quickly to regulate the obvious sources, like factory smoke stacks, steel mills and coal power plants. Yet the acrid smog persisted.
“You couldn’t see the mountains around L.A. on smoggy days,” said John R. Balmes, a physician, air pollution expert and a member of CARB’s board, who has lived in the region for almost four decades. “People’s eyes would burn. They’d have headaches. They’d have problems breathing.”
It took Arie J. Haagen-Smit, a Dutch biochemist at the California Institute of Technology, to link the smog to auto emissions. An avid gardener, he become alarmed in the late 1940s by the discolored leaves and flowers in his garden. He soon tracked down the culprit: the largely invisible exhaust from motor vehicles or factories was reacting with sunlight, forming ozone, or smog.
Major automakers disputed the chemist’s findings. But a determined Dr. Haagen-Smit pressed his case, recreating smog in flasks to release at public hearings — proving, beyond a doubt, that cars were the source. That fervor elevated him to a job as the first chairman of the state’s air resources board, set up by then Gov. Ronald Reagan in 1967.
When Congress established the E.P.A. in 1970 and passed the Clean Air Act later that year, California was granted a waiver to follow air pollution rules it had already established.
Automakers Cut a Deal
In facing off with the auto industry, Ms. Nichols has harnessed a similar passion.
At a March meeting of the CARB board — where she and her fellow board members resolved to push ahead with stricter emissions rules for cars and trucks, with or without the federal government — she stared down the auto industry representatives present.
No matter that Ms. Nichols, a former environmental lawyer and Wall Street Journal reporter who is known to keep a grueling schedule shuttling between CARB’s Sacramento headquarters and her Los Angeles home, was nursing a cold and “could barely croak.”
“What were you thinking when you threw yourselves upon the mercy of the Trump administration to try to solve your problems?” she scolded. “Let’s take action today, and let’s move on.”
Ms. Nichols is on her second tour as chairwoman of the air resources board; the current California governor, Jerry Brown, appointed her in 1979, during his first stint in office. She was again tapped to head the board in 2007, when Gov. Arnold Schwarzenegger asked her to return.
A clean-car evangelist, she is often seen driving around Los Angeles, where she lives, in her zero-emissions Honda Fit in “electric violet blue.” (She recently leased a second vehicle, a Toyota Mirai, a zero-emissions hydrogen fuel cell car, also in blue.)
She initially lauded automakers for supporting an effort, started by President Obama in 2009, to harmonize a mishmash of greenhouse gas emissions and fuel economy standards set by the E.P.A., the National Highway Traffic Safety Administration and CARB. Having taken almost $80 billion in bailout money, General Motors and Chrysler, especially, were in no position to resist.
Still, the automakers soon balked at the ambitious pace of fuel efficiency improvements under the program, which requires automakers to progressively raise the fuel economy of their cars to an average of 54.5 miles per gallon by 2025, nearly double the average in 2012. That comes to about 36 miles per gallon in real-world driving.
That aggressive target would compel automakers to speed the development of hybrid and electric cars, and to improve the fuel efficiency of their conventional fleets. Automakers also argued that meeting that target would be prohibitively costly, forcing them to raise car prices or to make more battery-powered vehicles than Americans want to buy.
In a compromise, the automakers agreed to the program, provided that the standards for the later years — 2022-25 — would be subject to a midterm review.
That review was in full swing when Mr. Trump won the presidency in late 2016. Just a day after his electoral victory, the Auto Alliance reached out to the president-elect, urging him to rework the standards, calling them a “substantial challenge” for the auto industry.
In a similarly swift maneuver, the Obama administration cut short the review and finalized the rules, calling them “feasible, practical and appropriate,” just before leaving office.
The automakers doubled down. In a Feb. 21 letter, the auto industry alliance implored Mr. Pruitt, the E.P.A. head, to overturn President Obama’s 11th-hour decision. The standards, the alliance argued, “threaten to depress an industry that can ill afford spiraling regulatory costs.”
The E.P.A. has reversed President Obama’s decision. Last month, the agency officially called for comments on standards for model years 2021-25, widening the review’s scope. The National Highway Traffic Safety Administration, which focuses mostly on auto safety, not emissions, is expected to lead the review.
“We’re going to work on the CAFE standards so you can make cars in America again,” Mr. Trump said in a speech in Detroit this year, referring to the Corporate Average Fuel Economy standards, which were first put in place in 1975.
For a meaningful reprieve, however, automakers need Ms. Nichols on board. If CARB does not sign onto the reopened review, the automakers face the prospect of separate rules for California and its follower states — a coalition that covers more than 130 million residents and more than a third of the vehicle market in the United States.
Ms. Nichols is not budging. At the first public hearing on the reopened midterm review last week, CARB’s emissions compliance chief, Annette Hebert, threatened to abandon the review if the E.P.A. took steps to weaken the emissions standards.
Should the agency try to curtail California’s ability to set its own rules — by challenging its Clean Air Act waiver, for example — the fight will more than likely end in court, said Kevin Poloncarz, a San Francisco lawyer focusing on air and climate change law.
“Pulling that waiver would be like declaring an all-out war on California,” he said.
Accusations of Overreach
Even in California, some critics challenge the expansive powers of a board of unelected officials with the authority to set environmental policy. All but two of the board’s 14 voting members are appointed by the governor, and today include a doctor, an almond farmer and a paint company executive.
Over the years, CARB has expanded its reach, regulating products as diverse as lawn mowers and bulldozers, air fresheners, paint thinners and even hair and bug spray. It has sent inspectors to Tokyo and Stuttgart, Germany, to monitor the testing of cars manufactured overseas. And it oversees a system of air-quality management districts across California that issue and enforce their own local regulations.
The agency is insulated even from state budgetary and legislative pressures. Its $956 million budget comes from user fees, like permits paid by polluters or the fees paid by car owners for smog certification, instead of from the state’s general fund.
Accusations of overreach exploded in 2015, when Mr. Brown made a push to require a 50 percent reduction in petroleum use in motor vehicles by 2030, with CARB managing the reduction. Republicans and even some Democrats balked at the plan, and an oil industry campaign warned that the law would vastly expand CARB’s authority and could even lead to gas rationing.
The governor eventually abandoned his push. He also signed legislation allowing the state Senate and Assembly to appoint one member each to the CARB board, enhancing lawmakers’ control over the agency.
“What worries me is that they have unrestrained power,” said Mike Morrell, a Republican state senator who is one of CARB’s toughest critics. “They think they’re the masters of the universe.”
A Path to a Cleaner Future
CARB’s Arie Jan Haagen-Smit Laboratory in El Monte, Calif., is a reminder of the resources at the agency’s command.
At the lab, 120 technicians measure emissions on new engines before they can be used in cars sold in California. They also pull cars from the road to make sure older models stay compliant. A failed test can delay certification, or in the case of an older model, an expensive recall.
Engineers at the lab helped expose Volkswagen’s diesel emissions cheating, a scandal that affected about 600,000 cars in the United States. The lab is now strengthening its testing, and will move to a new state-of-the-art new facility in Riverside by 2020.
Even as CARB remains steadfast, however, Ms. Nichols is eager to persuade automakers that they ultimately stand to benefit from stricter fuel economy rules.
This year, Britain and France proposed to end the sale of new gasoline and diesel cars by 2040. Volvo recently said that the models it introduces starting in 2019 will be either hybrids or powered solely by batteries.
Without an aggressive shift toward zero- and low-emissions cars, the American auto industry risks becoming a global laggard, Ms. Nichols said. It is no time, she said, to be meddling with standards already in place.
“We want to start conversations about post-2025,” Ms. Nichols said. “That’s what we’re getting ready for.”
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